author: STREIT, Justice. CARTER, Justice

text:
    STATE of Iowa, Appellee, v. Joshua Paul MOOREHEAD, Appellant.
    No. 03-1904.
    Supreme Court of Iowa.
    April 1, 2005.
    Rehearing Denied July 11, 2005.

      John P. Lander of Brown, Kinsey, Funkhouser & Lander, P.L.C., Mason City, for appellant.
    Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, Paul L. Martin, County Attorney, and William Hoekstra, Assistant County Attorney, for appellee,
   STREIT, Justice.

Mother knows best. While detained in the back of a patrol car on suspicion of drunk driving, a young man asked the police if he could talk to his mother about his predicament. He now asks us to overturn his conviction because the police did not comply with his request. We reverse and remand for further proceedings.

I. Facts.

In the wee hours of April 20, 2003, a Cerro Gordo County deputy sheriff clocked a car speeding on a highway in Mason City. The deputy gave chase but the ear did not immediately stop. The car swerved over the center line twice before eventually coming to a halt on the wrong side of an adjacent residential street.

The deputy spoke to the driver, Joshua Paul Moorehead. Moorehead was eighteen years old, living at home with his parents, and driving his mother’s car. The deputy smelled alcohol and noticed Moore-head’s speech was slurred. Moorehead’s eyes were glazed but not bloodshot. Moorehead initially denied having anything to drink, but later admitted he had drunk one beer.

The deputy administered three field sobriety tests for drunkenness. Moorehead failed them all. While taking one of -these tests, Moorehead said he did not know if he could pass the test “if I was sober.” The deputy also asked Moorehead to take a preliminary breath test, and Moorehead complied. Based upon his observations, the deputy placed Moorehead in the deputy’s vehicle.

While Moorehead was sitting in the back of the police car, the deputy and Moore-head had the following videotaped conversation:

DEPUTY: Well, Josh, you’ve been drinking a lot more than one beer tonight. By all the tests that I’ve done, you’re definitely over the legal limit.... I’m going to have to take you with me [to the police station] to do one more test.
MOOREHEAD: That’s fine, sir. ■
DEPUTY: What do you want done with the car? •
MOOREHEAD: Um....
DEPUTY: Do you [have] some parents that can get it or anything? That can come get you after awhile?
(In .an inaudible portion of the tape, at this point Moorehead presumably indicates the deputy should - contact his mother.)
MOOREHEAD: Would it be possible for me to talk to my Mom when you call her to come pick it up?
DEPUTY:' Not right how, because I just have to call my dispatcher and have her call her.
MOOREHEAD: 'All right, that’s fine....
DEPUTY: I’ll probably have to wait here until she, comes anyway....
MOOREHEAD: Yeah, that’s fine.

The deputy contacted his dispatcher. The dispatcher called Moorehead’s parents.

Moorehead’s parents arrived at the scene of their son’s detention. Moorehead’s mother asked the deputy if she could speak with her son. The deputy told her he had to take Moorehead to the police station first and the dispatcher would call her when she could pick him up.

By all accounts, however, Moorehead’s mother did have a brief encounter with her son at the scene through the window of the patrol car. (It is unclear from the record whether the window was up or down.) For approximately thirty seconds to one minute, Moorehead’s mother yelled at her son. She told Moorehead he was grounded, and would remain grounded for a long period of time. Moorehead’s father said his wife “wasn’t very happy” and “kind of chewed on him a little bit.” Moorehead testified his exchange with his mother was not a “conversation,” just his mom yelling at him through a closed window. Moorehead did not get in a word. Moorehead’s parents took the car home and waited for a call from the police.

The deputy took Moorehead to the police station. The deputy read Moorehead the Miranda warnings and the implied consent advisory. Moorehead asked the deputy whether he should take the breath test. The deputy replied it was entirely Moorehead’s decision to make. Moore-head never asked to call his mother again, or, for that matter, anyone else. Moore-head testified he still wanted to speak to his mother but did not ask to do so again because he had already asked and therefore assumed the deputy would tell him when he could do so. Moorehead took the breath test and blew a .182.

After the test, the deputy gave Moore-head a list of written questions. On the questionnaire Moorehead admitted he had drunk not one, but three cans of Busch Light — -“the only kind of beer I touch.” Bizarrely, he also indicated he wished he had a glass eye and diabetes.

While filling out the questionnaire Moorehead stood up. The deputy asked Moorehead if he was okay. Moorehead replied “I’m drunk as hell.”

II. Prior Proceedings

The county attorney charged Moorehead with first-offense OWI. See Iowa Code § 321J.2 (2001). Before trial Moorehead moved to suppress “any and all evidence obtained from this matter including results of breath testing and ... answers to any interrogation which occurred without counsel.” Moorehead argued the deputy had denied him his statutory right to contact a family member. See id. § 804.20. The district court denied Moorehead’s motion. The court concluded Moorehead made his request at the scene of the stop (as opposed to the police station) and therefore the statute did not apply.

Moorehead waived his right to a jury and stipulated to a bench trial on the minutes of testimony, as well as other agreed-upon evidence. Moorehead renewed his suppression argument; the trial court again denied the motion. The court found Moorehead guilty. The trial court noted Moorehead had a breath alcohol level of .182 and “exhibited observable physical symptomatology of [impairment].” The court did not expressly rely upon any of Moorehead’s incriminating statements in reaching its verdict.

Moorehead appealed. Although the court of appeals found the police had violated Iowa Code section 804.20, it affirmed on harmless error grounds. The court cited “overwhelming evidence” of Moore-head’s guilt, including Moorehead’s admission that he was “drunk as hell.”

Moorehead sought further review, which we granted. The primary issues before us are the same as those in the court of appeals, namely: (1) Did the district court err when it held Moorehead did not sufficiently invoke his statutory right to contact a family member when he asked to talk to his mother at the stop scene? and (2) If the district court did err, was admission cf the breath test result harmless?

III. Principles of Review

We review the district court’s interpretation of Iowa Code section 804.20 for errors at law. State v. Krebs, 562 N.W.2d 423, 425 (Iowa 1997) (citing State v. Frake, 450 N.W.2d 817, 818 (Iowa 1990)). If the district court properly applied the law and there is substantial evidence to support its findings of fact, we will uphold its ruling on a motion to suppress. See Krebs, 562 N.W.2d at 425. “Evidence is substantial when a reasonable mind would accept it as adequate to reach the same findings.” Id.

IV. Iowa Code § 804.20

Iowa Code section 804.20 is Iowa’s statutory right to call an attorney or a family member. It provides:

Any peace officer ... having custody of any person arrested or restrained of the person’s liberty for any reason whatever, shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of the person’s family or an attorney of the person’s choice, or both.... If such person is intoxicated, or a person under eighteen years of age, the call may be made by the person having custody.... A violation of this section shall constitute a simple misdemeanor.

Iowa Code § 804.20. In previous cases we have held section 804.20 does not require a police officer to inform a defendant of his right to contact counsel or a family member. See, e.g., State v. Tubbs, 690 N.W.2d 911, 914 (Iowa 2005); State v. Stroud, 314 N.W.2d 437, 439 (Iowa 1982). An officer may not, however, tell a defendant he does not have such a right, and once the right is invoked the officer must give the defendant the opportunity to call or consult with a family member' or attorney. See State v. Vietor, 261 N.W.2d 828, 831 (Iowa 1978).

The first issue in this case is primarily a matter of statutory interpretation. We must decide whether Moorehead’s Iowa ■ Code section 804.20 rights attached when he made his request at the scene of the stop. In resolving this issue, we consider two matters: whether Moorehead’s request was (1) properly timed and (2) sufficiently voiced.

A. Timing of Request

We conclude Moorehead’s request was .properly timed. Moorehead was “restrained of [his] liberty” as he sat in the back of the patrol car. See Krebs, 562 N.W.2d at 426 (recognizing that “section 804.20 may be implicated in a situation short of a formal arrest” so long as defendant was restrained of his liberty). Moorehead had already failed three field sobriety tests, a preliminary breath test, arguably made an incriminating statement, and displayed many symptoms of drunkenness. The deputy told Moorehead he was taking him in for one more test. The investigatory stage of the stop had ended. Cf. id. (holding request to call wife during field sobriety tests not within purview of Iowa Code § 804.20). The deputy himself testified that he considered ' Moorehead “technically” under arrest after he failed the field sobriety tests. Moorehead was not going anywhere. Cf. State v. Countryman, 572 N.W.2d 553, 557-58 (Iowa 1997). He was restrained of his liberty, and therefore his request fell within the time-frame of the statute. Like the court of appeals, we can find nothing in the plain language of Iowa Code section 804.20 that requires the defendant make his request for counsel or a family member at the ultimate place of detention. The district court erred when it ruled otherwise.

B. Sufficiency of Request

The primary thrust of the State’s argument before the court of appeals did not concern the timing of Moorehead’s request, but rather its sufficiency. The State argued the district court’s ruling should be affirmed because there was substantial evidence in the record to conclude Moorehead’s request to talk to his mother was not an unequivocal request to ask his mother for advice about his predicament, but instead an inquiry about what to do with the car. Lacking a clear request to seek advice, the State submitted Moore-head needed to ask for his mother again at the police station if he wanted to invoke the statute. The court of appeals rejected the State’s argument.

We agree with the court of appeals. In analyzing the sufficiency of Moorehead’s request, we apply “an objective consideration of the statements and conduct of the arrestee and peace officer, as well as the surrounding circumstances.” See Bromeland v. Iowa Dep’t of Transp., 562 N.W.2d 624, 626 (Iowa 1997); accord State v. Bowers, 661 N.W.2d 536, 542 (Iowa 2003) (section 804.20 claim “must be decided in the context of the situation” defendant was in at the time of the request). Although Moorehead’s request to talk to his mother arose in the context of a discussion about' the disposition of his mother’s car, Moorehead specifically, separately, and unequivocally requested to talk to his mother. Moorehead’s request was sufficient to invoke the statute. As a consequence, the police were obligated to hon- or Moorehead’s request “without unnecessary delay after arrival at the place of detention,” in this case the police station. Iowa Code § 804.20. Because the police did not do so, they violated Moorehead’s statutory right to contact a family member.

Y. Harmless Error

Consistent with our decision in State v. Victor, 261 N.W.2d 828 (Iowa 1978), the court of appeals ruled the district court should have suppressed the result of Moorehead’s breath test. Nonetheless the court of appeals affirmed on harmless error grounds. The court found there was “overwhelming evidence” Moorehead was guilty and therefore any error in admitting the test result was harmless. Moorehead was speeding, did not immediately stop for the deputy, swerved over the center line twice, had an odor of alcohol, slurred speech, and glazed eyes, failed all field sobriety tests, and admitted he was “drunk as hell” at the station.

In cases of nonconstitutional error, reversal is required if it appears the complaining party has suffered a miscarriage of justice or his rights have been injuriously affected. See, e.g., State v. Henderson, 696 N.W.2d 5, 12 (Iowa 2005); State v. Sullivan, 679 N.W.2d 19, 29 (Iowa 2004); State v. Wixom, 599 N.W.2d 481, 484 (Iowa Ct.App.1999). We presume prejudice unless the record affirmatively establishes otherwise. Henderson, 696 N.W.2d at 12; Sullivan, 679 N.W.2d at 30. A breath test result is important evidence in prosecutions for drunk driving. Cf. Smith v. Shagnasty’s Inc., 688 N.W.2d 67, 72 (Iowa 2004) (remarking in dram-shop action that “[ejvidenee of a person’s blood-alcohol level, if available, is important evidence of intoxication”). This is especially true when the breath test is high — in this case nearly twice the legal limit. It also' appears the test result played a central role in the district court’s decision. Because this matter was tried to the court, we have a written exposition of the fact finder’s reasoning in the verdict. Moorehead’s high breath test result is the very first fact cited as evidence of guilt. Mindful of a defendant’s right to a fair trial and just application of our rules, see Wixom, 599 N.W.2d at 484, it cannot be fairly said that the breath test result did not injuriously affect Moorehead’s rights. The district court’s error in admitting this evidence clearly prejudiced Moorehead. Admission of the breath test result into evidence was therefore not harmless error. We vacate the decision of the court of appeals and remand for a new trial without use of the breath test result.

VI. Use of Incriminating Statement on Remand

In determining that introduction of the breath test result was harmless error, the court of appeals relied upon Moorehead’s admission at the police station that he was “drunk as hell.” On further review, Moorehead argues -the Vietor exclusionary rule should apply to this statement and asks that it be suppressed on remand. We remand for a hearing to decide whether the statement -was made spontaneously.

By its terms, Iowa Code section 804.20 does not include an exclusionary rule. Instead, violation of the statute is a simple misdemeanor. Iowa Code § 804.20. ■In an early case interpreting section 804.20, we simply read the statute as written and declined to create an exclusionary rule -in the absence of a legislative directive to do so. See State v. Heisdorffer, 164 N.W.2d 173, 177 (Iowa 1969). Our decision in that early case is consistent with the general rule, recognized in our cases, that application of an exclusionary rule is ordinarily only warranted if explicitly expressed in the statute. See State v. Buenaventura, 660 N.W.2d 38, 46 (Iowa 2003) (equating treaty with statute and for this reason declining to create • exclusionary rule absent specific reference). It is also important to remember that Iowa Code section 804.20 was enacted in 1959 and thus predates much of the modern federal exclusionary rule jurisprudence. 1959 Iowa Acts ch. 373, § 1; see, e.g., Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081, 1090 (1961) (a landmark exclusionary rule decision). But see McNabb v. United States, 318 U.S. 332, 345, 63 S.Ct. 608, 615, 87 L.Ed. 819, 826 (1943) (when construing a federal statute, implied exclusionary rule mandates incriminating statement obtained during an unlawful detention is inadmissible).

More than twenty-five -years ago we changed course and overruled Heisdorffer. In State v. Vietor, a • man suspected of drunk driving asked to call an attorney but was denied his statutory right to do so. 261 N.W.2d at 830. The suspect ultimately refused to take a chemical test absent consultation with the attorney. Id. We overruled Heisdorffer and held “evidence of [the suspect’s] refusal to take [the] chemical test shall be inadmissible at a later criminal trial.” Id. at 832. Our holding in Vietor may be reconciled with the general presumption against implied statutory exclusionary rules on the theory that an exclusionary rule is warranted for violations of those statutes, including section 804.20, which involve fundamental rights or have constitutional overtones. See, e.g., Buenaventura, 660 N.W.2d at 46 (indicating exclusionary rule may be warranted when statute involves a “fundamental right”); State v. Kjos, 524 N.W.2d 195, 198 (Iowa 1994) (Neuman, J., dissenting) (“Such an extraordinary remedy should be reserved, I believe, for situations evidencing bad faith by the State’s agents or violation of a statute with constitutional overtones, as in Vietor.”); cf. Armenta v. Superior Ct. 61 Cal.App.3d 584, 132 Cal. Rptr. 586, 592 (1976) (requiring exclusion for “transgression of statutes embodying constitutional standards”).

In State v. McAteer, 290 N.W.2d 924 (Iowa 1980), another drunk driving case, we expounded further upon our holding in Vietor. McAteer was arguably distinguishable from Vietor because McAteer involved a request to speak with a family member, not an attorney. The State attempted to avoid the exclusionary rule on this basis. We held:

We believe the right, given by section 801.20, to communicate with a family member is neither more nor less qualified than the right given to communicate with an attorney. We know of no reason why.the exclusionary rule should be applied to a violation of one right and not to that of the other. The trial court was right in suppressing the evidence.

McAteer, 290 N.W.2d at 925 (emphasis added). In McAteer the suppressed evidence included a -breath test result, as opposed to testimony the defendant had not taken the test. Id. at 924.

In a generation’s worth of cases decided after Vietor and McAteer we have not explicitly decided whether the Vietor exclusionary rule bars introduction of evidence not relating to a breath test but likewise obtained after a violation of Iowa Code section 804.20, such as Moorehead’s post-test-result statement that he was “drunk as hell.” See Bowers, 661 N.W.2d at 541-42. But see 1981 Iowa Op. Att’y Gen. 6-1 (L) (remarking shortly after Vie-tor and McAteer were decided that “evidence obtained in violation of the right is subject to exclusion in a subsequent criminal proceeding”). We see no reason why the Vietor exclusionary rule should now be limited to statements regarding breath tests. Nothing in Vietor or our subsequent cases specifically restricts the exclusionary rule to such evidence. This is not surprising or without justification. On its face Iowa Code section 804.20 is a statute of general application. There is no indication in the statute that it is only concerned with the implied consent doctrine or the administration of breath tests. But see Krebs, 562 N.W.2d at 426 (“As we stated in [Vietor ], this statutory right is limited for persons arrested for OWL”). Nothing in Vietor or McAteer so holds.

The State proposes that in cases such as this one we should let the jury decide whether the incriminating statement was made voluntarily. See, e.g., Tornquist, 254 Iowa 1135, 1150, 120 N.W.2d 483, 492 (1963) (in pre-Vietor case, opining in dictum that such an instruction would be warranted); State v. Cameron, 254 Iowa 505, 511, 117 N.W.2d 816, 819 (1962) (same), overruled by Bowers, 661 N.W.2d at 543. On this theory, denial of a defendant’s section 804.20 rights would not always result in the exclusion of a confession elicited in consequence of that violation; instead the fact the defendant’s section 804.20 rights were violated would be but one factor for the .jury to consider. The State proposes we craft a jury instruction to this effect.

We decline to do so. The State’s proposal no longer encapsulates the proper roles of judge and jury in contemporary criminal procedure. Indeed, we recently-disapproved of such an instruction. Bowers, 661 N.W.2d at 543, overruling State v. Cameron, 254 Iowa at 511, 117 N.W.2d at 819. The case the State primarily relies on, Tomquist, 254 Iowa at 1150, 120 N,W.2d at 492, cites Cameron for support. Having overruled Cameron in Bowers we now likewise disavow our dictum in Tom-quist. A jury instruction on voluntariness is simply not consistent with our present practice and precedents. Bowers, 661 N.W.2d at 543.

In the alternative, the State argues suppression of Moorehead’s incriminating statement is not appropriate in this case because the deputy read Moorehead his Miranda rights before he confessed he was “drunk as hell” and argues these warnings should rectify any concerns about the voluntariness of his statement. Miranda warnings, however, do not address the right to contact a family member. We reiterate the right to contact a family member under section 804.20 is neither more nor less qualified than the right to contact an attorney. McAteer, 290 N.W.2d at 925.

Lastly, the State contends the “I’m drunk as hell” statement should be admissible because it was spontaneous. We agree to the extent that if the statement was spontaneous, the Vietor exclusionary rule should not apply. Cf. State v. Turner, 630 N.W.2d 601, 608 (Iowa 2001) (under Miranda doctrine, statements made freely, voluntarily, and spontaneously are admissible); State v. Brown, 176 N.W.2d 180, 182 (Iowa 1970) (same). Because the district court did not decide whether Moorehead’s statement was spontaneous, however, we decline to rule on this issue for the first time on appeal. See Sager v. Farm Bureau Mut. Ins. Co., 680 N.W.2d 8,15 (Iowa 2004).

On remand, the district court shall decide whether the “I’m drunk as hell” statement was spontaneous. If the court finds it was spontaneous, the statement should be admitted into evidence because the exclusion of such statements is not implicated by a violation of Iowa Code section 804.20. If the court finds it was not spontaneous, the statement should be suppressed because it was obtained after “unnecessary delay” — in this case after a breath test was administered. Iowa Code § 804.20; see Vietor, 261 N.W.2d at 832 (unnecessary delay when defendant not afforded phone call by the time breath test was administered).

Moorehead also argues that with the statement suppressed there would be insufficient evidence to convict him. For obvious reasons, we need not address this claim.

VIL Conclusion

Law enforcement violated Moorehead’s statutory right to talk with his mother. The district court erred in denying his motion to suppress his breath test result. We cannot say this error was harmless, and therefore we reverse and remand for a new trial.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED; CASE REMANDED WITH INSTRUCTIONS.

All justices concur except CARTER and TERNUS, JJ., who concur in part and dissent in part.

CARTER, Justice

(concurring ■ in part and dissenting in part).

I concur in the decision to suppress the results of defendant’s breath test based on our decision in State v. McAteer, 290 N.W.2d 924, 925 (Iowa 1980). I dissent from that portion of the opinion that extends the suppression remedy applied to chemical test results in McAteer and State v. Vietor, 261 N.W.2d 828, 832 (Iowa 1978), to matters of custodial interrogation. The constitutional protections afforded to persons in police custody provide an adequate safeguard against improper police interrogation. Consequently, the circumstances do not warrant the additional remedy that the court now derives from Iowa statutory law in the absence of a clear indication that the legislature intended that result.

TERNUS, J., joins this concurrence in part and dissent in part.

      . We are not asked to decide whether the yelling incident preempted law enforcements obligation to permit Moorehead to talk with his mother after arriving at the police station. We note, however, that this is not a case where the police undertook measures to put the defendant in contact with a family member only to have the family member yell, hang up, or otherwise refuse to give advice and comfort. Cf. Bromeland, 562 N.W.2d at 626 (holding statutory right to contact attorney not violated when officer tried to put arrestee in contact with attorney but attorney was unavailable). Here the deputy did not honor Moorehead's request and kept his mother from him.

      . The majority of the court is incorrect in suggesting that it would be inconsistent to provide a suppression-of-evidence remedy for violations of the statute when chemical testing is involved and failing to provide such a remedy with respect to interrogation. There would be no inconsistency in doing that. Although the constitutional protections, including Miranda warnings, give adequate protection against unwarranted police interrogation, those safeguards are of little assistance to an arrested party with regard to the decision that must be made with respect to chemical testing. Denial of the statutory right to outside assistance in making the latter decision may only be vindicated by suppression of the test results.


source: Caselaw Access Project

author: STREIT, Justice.

license: Public Domain

text:
    Lorraine RICHARDS and Ward Richards, Appellants, v. ANDERSON ERICKSON DAIRY CO., Gary Link, Kellie Barney and Mary Barney, Appellees. Anderson Erickson Dairy Co. and Gary Link, Appellees, v. Estate of Sarah Dahlke, Connie Dahlke, Rodney Naber, Charles Funke, Henry Brunsman, Lavern Willenborg, Brian Buhrow and Janet Buhrow, Appellees.
    No. 04-0644.
    Supreme Court of Iowa.
    July 8, 2005.
    Rehearing Denied July 28, 2005.

      David P. McManus of Glasson, Sole, Mc-Manus & Pearson, P.C., Cedar Rapids, for appellants.
    Richard S. Fry and Heather L. Fleming of Shuttleworth & Ingersoll, P.L.C., Cedar Rapids, for appellees Anderson Erickson and Link.
    Scott E. McLeod and Todd Slagter of Lynch Dallas, P.C., Cedar Rapids, for ap-pellees Dahlke.
    Natalie Burris of Swisher & Cohrt, P.L.C., Waterloo, for appellees Naber and Funke.
    Matthew Petrzelka of Simmons, Perrine, Albright & Ellwood, Cedar Rapids, for appellees Barney.
    James P. Craig of Moyer & Bergman, P.L.C., Cedar Rapids, for appellees Bruns-man and Willenborg.
   STREIT, Justice.

Iowa City must be a special place. The plaintiffs in this personal-injury action filed suit in Johnson County, notwithstanding the fact that it hardly had any connection to the case. The district court granted the defendants’ motion for a change of venue. The plaintiffs lost their trial and now appeal the venue change. Because we agree venue was not proper in Johnson County, we affirm.

I. Facts and Prior Proceedings

This appeal stems from a chain-reaction collision on a highway in Grundy County in early 2001. The accident involved a semi-truck owned by the Anderson Erickson Dairy Company (“AE”). Lorraine and Ward Richards suffered injuries in the accident and sued AE for negligence. They also sued Gary Link, the AE employee driving the semi-truck, and Kellie and Mary Barney, the operator and the owner of another car involved in the accident.

The Richards filed their lawsuit in Johnson County, even though none of the parties resided there. The Richards are residents of Grundy County; Link is a resident of Story County; the Barneys are residents of Polk County; and AE is an Iowa corporation whose principal place of business is in Polk County. Although the motivation for filing in Johnson County remains unknown, the Richards claimed venue was proper there because AE regularly drove its trucks through Johnson County.

Before filing an answer, AE and Link moved for a change of venue. See Iowa R. Civ. P. 1.808(1). They sought to have the trial moved to Grundy County, where the accident occurred. The district court granted the motion.

At trial, the jury found in favor of the defendants. The Richards filed a motion for a new trial. They argued the district’ court should not have transferred the case to Grundy County. The district court denied the motion, and the Richards appealed.

II. Principles of Review

“The scope of our review of a district court’s ruling on a motion for new trial depends on the grounds raised in the motion.” Channon v. United Parcel Serv., Inc., 629 N.W.2d 835, 859 (Iowa 2001). That is,

[t]o the extent the motion is based on a discretionary ground, we review it for an abuse of discretion. But if the motion is based on a legal question, our review is on error.

Roling v. Daily, 596 N.W.2d 72, 76 (Iowa 1999). The parties disagree about what standard of review should be applied. The disagreement stems from the fact that some motions for a change of venue require the district court to exercise its discretion, whereas others do not.

For example, Iowa Rule of Civil Procedure 1.801(3) permits the district court to change the venue of a trial if the inhabitants of the county are prejudiced against the moving party. In a number of appeals concerning this and similar rules, we have reviewed for an abuse of discretion. See, e.g., Peters ex rel. Peters v. Vander Kooi, 494 N.W.2d 708, 711 (Iowa 1993) (reviewing district court’s application of what is now rule 1.801); see also State v. Evans, 671 N.W.2d 720, 726 (Iowa 2003) (reviewing application of Iowa Rule of Criminal Procedure 2.11 to a claim of excessive pretrial publicity). In the case at bar, however, we are asked to assess the district court’s grant of a motion for change of venue pursuant to Iowa Rule of Civil Procedure 1.808. Unlike rule 1.801, rule 1.808 requires the district court to move the case to another county if it was brought in the wrong county. See Iowa R. Civ. P. 1.808(1) (stating that the district court “shall” move the trial to a “proper” county). To .determine whether or not the plaintiff filed suit in an improper place, the court only makes a legal determination based upon the venue provisions of Iowa Code chapter 616. Slattery v. Iowa Dist. CL, 442 N.W.2d 82, 84-85 (Iowa 1989). Rule 1.808 does not implicate the discretionary judgment of the district court. Id. Therefore our review in this case is for errors at law, not an abuse of discretion.

III. The Merits

The primary issue is whether venue was proper in Johnson County. If venue was proper there, we assume the district court lacked authority to transfer the case elsewhere; when venue is proper in multiple counties, the plaintiff may choose where to file and the district court lacks the discretion to transfer the case pursuant to rule 1.808. See id. . If venue was not proper in Johnson County, we must decide whether it was proper in Grundy County. Id.

To answer the foregoing questions, we must apply the various provisions of Iowa Code chapter 616. Id. We first analyze Iowa Code section 616.17, our general venue statute. We then consider two specific venue provisions, which the parties variously claim have applicability in this case.

A. Iowa Code § 616.17

In Iowa, there is a long-standing preference for trying cases in the county of a defendant’s residence. Tull v. Honda Research & Dev., Ltd., 469 N.W.2d 683, 686 (Iowa 1991) (tracing preference back to 1851). Today this preference is found in Iowa Code section 616.17, our general venue statute. See id. That statute provides:

Personal actions, except as otherwise provided, must be brought in a county in which some of the defendants actually reside, but if neither of them have a residence in the state, they may be sued in any county in which either of them may be found.

Iowa Code § 616.17 (2001). Although renumbered several times over the years, the substance of the statute has remained unchanged for over a century. Compare Iowa Code § 2586 (1873), with Iowa Code § 616.17 (2001). Clearly, the present personal-injury lawsuit is a “personal action” for purposes of the statute. See, e.g., Tull, 469 N.W.2d at 686 (holding a negligence action arising out of an all-terrain vehicle accident was a “personal action”); Baker v. Ryan, 67 Iowa 708, 710, 25 N.W. 890, 890 (1885) (holding petition alleging negligence was a “personal action”). Here venue was proper in both Story and Polk counties because at least one defendant resided in each locale. Iowa Code § 616.17.

Having applied the general venue statute to the facts of this case, we now turn to examine two specific venue provisions the parties have brought to our attention, Iowa Code sections 616.18 and 616.8. We must determine whether they fit within the “except as otherwise provided” proviso in the general venue statute and also make venue proper in other counties. Id.) see, e.g., Tull, 469 N.W.2d at 686.

B. Iowa Code § 616.18

In 1941, the legislature enacted a law permitting plaintiffs in motor vehicle accidents to sue in the county in which the injury was sustained. 1941 Iowa Acts ch. 298, § 1 (codified at Iowa Code § 616.18 (1946)). In 1972, the legislature broadened this special venue provision to plaintiffs in all personal-injury lawsuits. 1972 Iowa Acts ch. 1127, § 1 (codified at Iowa Code § 616.18 (1973)). We subsequently held Iowa Code section 616.18 falls within the “except as otherwise provided” proviso of Iowa Code section 616.17. Tull, 469 N.W.2d at 686. For this reason, the defendants are correct when they assert that venue in this case was not only proper in Polk and Story counties, the residences of various defendants, but also proper in Grundy County, the scene of the collision. Iowa Code § 616.18 (Iowa 2001); see also Becker v. Wright, 540 N.W.2d 250, 253 (Iowa 1995) (holding venue proper under Iowa Code section 616.17 where alleged injury was “triggered”).

C. Iowa Code § 616.8

To show venue was proper in Johnson County, the plaintiffs cite another special venue statute, Iowa Code section 616.8. Like our general venue statute, section 616.8, known as our common carrier statute, has also remained virtually unchanged for over a century. Compare Iowa Code § 2582 (1873), with Iowa Code § 616.8 (2001). It provides:

An action may be brought against any railway corporation, the owner of stages, or other line of coaches or cars, express, canal, steamboat and other river crafts, telegraph and telephone companies ... in any county through which such road or line passes or is operated.

Iowa Code § 616.8. Although not expressly mentioned, we have held that semi-trucks carrying freight on a fixed schedule over a regular route with fixed termini constitute a “line of ... cars” for purposes of the statute. Bruce Transfer Co. v. Johnston, 227 Iowa 50, 52-55, 287 N.W. 278, 278-81 (1939) (holding the fact legislature could not have foreseen rise of semi-trucks when it enacted common carrier statute in the nineteenth century did not foreclose an interpretation that would effectuate its intent).

The Richards contend section 616.8, like section 616.18,■ falls within the “except as otherwise provided” language of section 616.17 and thereby authorized venue in Johnson County. Prior precedent holds otherwise. We were presented with simi-larfaets and identical statutes in 1926 and held our common carrier statute did not fall within the exception to the general venue statute. For this reason, today we hold venue was not proper in Johnson County and affirm the district court.

Nickell I

In Nickell v. District Court (“Nickell I”), the plaintiff was killed when his automobile 'collided with a train in Wayne County. 202 Iowa 408, 409, 210 N.W. 563, 563 (1926). His estate sued the railroad and its engineer in Clarke County.' Id. The railroad was an Illinois corporation with its principal place of business in Illinois. Id. The engineer was a resident of Appanoose County. Id. The railroad had routes in Wayne, Clarke, and Appanoose Counties. Id.

The engineer filed a motion to change venue to Appanoose County. Id. The plaintiff resisted the motion. Id. The plaintiff claimed Iowa’s eomhion carrier statute fit within the “except otherwise provided” language of the general venue statute and therefore permitted him to sue both the railroad and the engineer anywhere the railroad had tracks in the state. Id. at 410, 210 N.W. at 563. It is important to note that notwithstanding the passage of time, the general venue and common carrier statutes in Nickell I, although renumbered, are identical to those in the case at bar. Compare Iowa Code §§ 11041, 11049 (1924), with Iowa Code §§ 616.8, .17 (2001).

The district court denied the engineer’s motion, but on appeal we reversed. We held “the exception provided for in [the general venue statute] does not cover the conditions provided for in [the common carrier statute].” Nickell I, 202 Iowa at 411, 210 N.W. at 564. We further held that because the railroad was not a resident of Clarke County, the district court properly granted the engineer’s motion for a change of venue to the county of his residence. Id.

Our holding in Nickell I was premised upon a distinction between suability and residence. Id. at 410-11, 210 N.W. at 563-64. Even though the common carrier statute rendered the railroad suable anywhere it had tracks, that did not make it a resident of all those counties for purposes of a codefendant Iowa resident’s motion for a change of venue predicated upon the general venue statute. Id. That is, the mere fact the common carrier is suable in any county where its tracks run does not trump the right of other Iowa residents-defendants to have the trial held in a county where at least one of them resides. See id. In harmonizing the two statutes in this way, we emphasized that venue statutes are statutes of convenience and must be construed to effectuate the same. See id. at 411, 210 N.W. at 564 (noting “it was undoubtedly as convenient” for the railroad to have the case tried in Appanoose County as in Clarke County).

Nickell II

We further explained and reaffirmed our holding in Nickell I the next year in Hinchcliff v. Dist. Ct., 204 Iowa 470, 215 N.W. 605 (1927) (“Nickell IF), a subsequent appeal taken from the same case. See Recent Cases, 13 Iowa L. Rev. 217, 230-31 (1928) (digesting Nickell I and II). After we decided Nickell I, on remand the district court ordered the entire case transferred to Appanoose County. Nickell II, 204 Iowa at 471, 215 N.W. at 605. The plaintiff objected. Id. Although the plaintiff admitted transfer of the case was proper as to the engineer, he resisted transfer of the railroad company. Id.

In Nickell II, we reaffirmed our holding in Nickell I and again ordered the entire case transferred to Appanoose County. Id. at 472-73, 215 N.W. at 605-06. In doing so, we further explained our reasoning in Nickell I. We reiterated transfer of the case as to the engineer was proper because of the distinction between suability and residence, i.e., the common carrier statute did not make the railroad a “resident” of Clarke County to satisfy the engineer’s right under the general venue statute to have the case tried where at least one Iowan-defendant resided. See id. The engineer was therefore entitled to have the case transferred to Appanoose County. As for the railroad company, we held that once it was determined the engineer was entitled to a transfer to Appa-noose County, the entire case should be moved there for the sake of convenience. See id. (citing the principle that “[a] case should be, if possible, kept together, and find disposition on one trial” and noting it was equally convenient for the railroad to try the case in either venue).

When reading Nickell I and II together, it becomes manifest that it was the engi neer’s interest to be sued in his county of residence that controlled the analysis in Nickell I. Put simply, Nickell I held that Iowa Code section 616.8 does not fall within the “except as otherwise provided” proviso of section 616.18 when the plaintiff also sues other Iowa residents. See also Halse v. La Crescent Grain Co., 231 Iowa 231, 235, 1 N.W.2d 202, 204 (1941) (adhering to Nickell I and II on analogous facts).

In light of Nickell I and II, it is clear in the case at bar that venue was not proper in Johnson County. AE was suable in Johnson County but not a resident thereof. Link was entitled to have the case moved to a proper venue. Iowa R. Civ. P. 1.808. As indicated, venue was proper in either Polk or Story counties, the counties wherein at least one defendant was resident, as well as Grundy County because the injury was allegedly sustained there. Iowa Code §§ 616.17, .18; see also Tull, 469 N.W.2d at 686. Therefore the district court did not err when it moved the entire case to Grundy County. Iowa Code § 616.18; see Halse, 231 Iowa at 235, 1 N.W.2d at 204; Nickell II, 204 Iowa at 472-73, 215 N.W. at 605-06; Nickell I, 202 Iowa at 411, 210 N.W. at 564.

Reaffirming Statutes of Convenience

To overrule Nickell I and II after nearly eight decades would frustrate legislative intent in two respects. First, the legislature’s silence over the years is evidence of its tacit approval of our construction of the statutory framework. State v. Anderson, 517 N.W.2d 208, 214 (Iowa 1994); accord Ronald Dworkin, Law’s Empire 318-19 (1986) (“A statute owes its existence not only to the decision people made to enact it but also to the decision of other people later not to amend or repeal it.”). Second, it must be remembered that venue statutes are statutes of convenience, and to hold otherwise would promote inconvenience. See Nickell I, 202 Iowa at 411, 210 N.W. at 564. On this latter point, some further explanation of the common carrier statute is necessary.

As enacted, the common carrier statute both expanded and restricted venue for suits brought against common carriers. In each instance, however, the statute promoted convenience.

The common carrier statute expanded the venue options for plaintiffs suing a resident common carrier by itself. At the time, of course, there was not a special venue statute such as Iowa Code section 616.18 permitting plaintiffs to bring suit in the county where the injury occurred. Instead of forcing the plaintiff to sue the resident common carrier at its principal place of business, the plaintiff could sue it wherever its lines ran. See Bruce Transfer, 227 Iowa at 52, 287 N.W. at 280 (“The statute was apparently based upon the thought that the public interest and convenience would be promoted by permitting suits against common carriers in any county on their lines.”). This was undoubtedly utilized by plaintiffs to file suit where the injury occurred, which, in turn, was likely to be where evidence, the witnesses, and possibly even the plaintiff resided.

The common carrier statute restricted venue for plaintiffs suing a nonresident common carrier by itself. In its absence, the general venue statute permitted plaintiffs to sue the common carrier anywhere it could “be found.” Iowa Code § 11041 (1924) (now codified at Iowa Code § 616.18). Again, the common carrier statute promoted convenience because the common carrier

can more easily procure its witnesses, and carry on the process of the trial [when sued where its lines run] than if it were forced to defend in some remote corner of the state where one of its officers may be served, but where it does not carry on its business of transportation.

The Distinction Between Suability and Residence in Venue Statutes, 13 Iowa L. Rev. 212, 214 (1928); see, e.g., Atchison, Topeka & Santa Fe Ry. v. Mershon, 181 Iowa 892, 894, 165 N.W. 86, 87 (1917)-(sanctioning change of venue pursuant to common carrier statute from a county in which one of the railroad’s agents was served to a county in which it ran its lines).

The Richards would have us overrule our precedents and reinterpret chapter 616 to permit a plaintiff to sue any Iowa resident who happens to have a common carrier as a codefendant in the remotest parts of the state, even though the chosen venue had no connection with the case. This interpretation would clearly promote forum shopping and inconvenience, and thereby frustrate legislative intent. It would also foster injustice because it would encourage plaintiffs to sue defendants in inconvenient venues as leverage in the settlement process. We will not sanction an interpretation of chapter 616 that would permit a plaintiff to transform statutes of convenience into statutes of inconvenience.

We are obligated to consider the common carrier statute in pan materia with other pertinent statutes. Niles v. Iowa Dist. Ct., 683 N.W.2d 539, 541 (Iowa 2004). That is precisely what we did in Nickell I and Nickell II, when we held the common carrier statute does not fall within the exception to the general venue statute, at least with respect to a non-common carrier defendant. We adhere to those holdings today.

IV. Conclusion

Venue was proper in Polk, Story, and Grundy counties. The plaintiffs filed suit in Johnson County, which was not a proper venue. The district court rightly transferred the entire case to Grundy County.

AFFIRMED.

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

      . In their reply brief, however, the Richards state "Of course this court is fully aware of the strategy reasons that are back [sic] of this litigation.”

      . The same law firm represents AE and Link. Although in the motion for a change of venue the firm only referenced AE, on appeal the parties appear to agree that both AE and Link sought the change of venue to Grundy County. We assume the same. The Barneys did not join in this motion until after filing their answer. But see Iowa R. Civ. P. 1.808(1) (requiring defendants to object to venue before filing answer).

      .After the case was transferred to Grundy County, AE and Link cross-petitioned against a number of third-party defendants. These defendants resisted the plaintiffs’ motion for a new trial and are also parties to this appeal. But see Cooley v. Ensign-Bickford Co., 209 N.W.2d 100, 101-02 (Iowa 1973) (third-party defendant ordinarily has no right to a change of venue to county of residence); Mahaska County State Bank v. Crist, 87 Iowa 415, 422-24, 54 N.W. 450, 452-53 (1893) (similar). We omit all further reference to them.

      . As in Slattery, the defendants in this case did not ask the court to move the trial for non-statutory reasons. 442 N.W.2d at 84.

      . The parties here do not discuss Nickell II.

      . As in Nickell II, we expressly do not decide whether venue would have been proper in Johnson County had the plaintiffs only sued AE or had settled with Link. See Nickell II, 204 Iowa at 472, 215 N.W. at 606. There is some support for the view that it would be proper. See Bruce Transfer, 227 Iowa at 52-55, 287 N.W. at 278-81 (although not asked to decide its relationship with the general venue statute, holding under the common carrier statute that a common carrier — the sole defendant in the case — was not permitted a change of venue to its principal place of business); see also The Distinction Between Sua-bility and Residence in Venue Statutes, 13 Iowa L.Rev. 212, 216 (1928) (opining that "[i]t is granted that if the railroad company had been sued alone, the venue would have been properly laid” in Nickell I).


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Daniel Martin LIEBER, a Minnesota Attorney, Registration No. 207731.
    No. A04-636.
    Supreme Court of Minnesota.
    June 30, 2005.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action and a second amended and supplementary petition for disciplinary action alleging that respondent Daniel Martin Lieber has committed profession misconduct warranting public discipline. The referee conducted a hearing and filed his findings of fact, conclusion of law, and recommendation for discipline recommending that respondent be disbarred.

The referee found that respondent made improper financial advances to clients, charged the clients interest on the sums advanced at the rate of 15 percent per month, failed to disclose his conflict of interest in the transactions, lied about his involvement in the transactions both before and during the disciplinary investigation, made false statements under oath regarding his involvement in the transactions, ratified the false sworn testimony of one of his employees about one of the transactions, mishandled client funds held in his trust account by regularly making disbursements, primarily to clients, before depositing client funds to the accounts in support of those disbursements resulting in the temporary misappropriation of other clients’ funds to cover those disbursements, commingled personal and client funds in the trust account, failed to maintain proper books and records regarding funds held in trust, and falsely certified that he maintained the required trust ac-

count books and records, in violation of Minn. R. Prof. Conduct 1.7, 1.8(a), (e), and Cj), 1.15(a), (b), (c), and (h), 3.4(b), 4.1, 8.1(a)(3), and 8.4(a), (c), and (d).

Respondent has entered into a stipulation with the Director in which they stipulate that the referee’s findings of fact and conclusions of law are conclusive and they jointly recommend that the appropriate discipline is immediate disbarment and payment of $900 in costs and disbursements pursuant to Rule 24, Rules on Lawyers Professional Responsibility.

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

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that respondent Daniel Martin Lieber is disbarred, effective immediately. Respondent shall pay $900 in costs and disbursements.

BY THE COURT:

/s/ Russell A. Anderson Associate Justice


author: /s/ G. Barry Anderson Associate Justice

text:
    Daryl F. CLARK, Relator, v. LAKE SUPERIOR PAPER/M.J. ELECTRIC, and St. Paul Companies, Respondents, and Special Compensation Fund, Intervenor.
    No. A05-710.
    Supreme Court of Minnesota.
    July 5, 2005.

      David R. Vail, Soderberg & Vail, L.L.C., Minneapolis, MN, for Appellant.
    Barbara L. Heck, John G. Ness & Associates, St. Paul, MN, for Respondents.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed March 11, 2005, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary dispositions have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

BY THE COURT:

/s/ G. Barry Anderson Associate Justice


author: PAGE, Justice. BLATZ, Chief Justice ANDERSON, PAUL H., J.

text:
    Brian JAMES, Appellant, v. STATE of Minnesota, Respondent.
    No. A03-489.
    Supreme Court of Minnesota.
    July 7, 2005.

      John M. Stuart, State Public Defender, Cathryn Middlebrook, Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, James B. Early, Assistant Attorney General, St. Paul, MN, Gaylord Saetre, Todd County Attorney, Long Prairie, MN, for Respondent.
   OPINION

PAGE, Justice.

This case arises from a postconviction court’s denial of Brian James’s postconviction petition to withdraw his guilty plea. James contends that because he was not informed of a statutorily mandated conditional release term before the conditional release term was actually imposed he is entitled to have either his plea withdrawn or his sentenced modified. The postcon-viction court denied James’s petition. On appeal, the court of appeals declined to reach the merits of James’s claims, held that James’s petition was not timely under Minn. R.Crim. P. 15.05, subd. 1, and affirmed the postconviction court’s denial of James’s petition.

In June 1997, James was charged with one count of criminal sexual conduct in the third degree in violation of Minn.Stat. § 609.344, subd. 1(d) (2004), and one count of burglary in the first degree in violation of Minn.Stat. § 609.582, subd. 1(c) (2004). James negotiated a plea agreement with the state whereby he agreed to plead guilty to an amended charge of criminal sexual conduct in the fourth degree in violation of Minn.Stat. § 609.345, subd. 1(d). In exchange for James’s guilty plea, the burglary charge was dismissed and the state promised to recommend that James be sentenced to 36 months in prison with execution of the sentence stayed and no more than 10 years of supervised release. At the time of James’s offense, Minn.Stat. § 609.346, subd. 5(a) (1996), required that any sentence imposed on a defendant convicted of a criminal sexual conduct offense who had a previous criminal sexual conduct conviction include a mandatory 10-year conditional release term. It appears from the record that James, who had a previous criminal sexual conduct conviction, was not made aware of the conditional release term during the plea negotiations.

On October 27, 1997, the district court held a plea hearing and accepted the plea agreement. James was sentenced in accordance with the terms of the plea agreement on July 8, 1998. In addition, the court required James to serve 242 days in jail. The court failed, however, to inform James at either the plea hearing or the sentencing hearing about the 10-year conditional release term, nor did the court impose the conditional release term at the time of sentencing.

In October 1999, the district court revoked James’s probation and executed his 36-month prison sentence. At the probation revocation hearing, the court, for the first time, informed James that he would be subject to a mandatory conditional release term. Specifically, the court said that, upon the completion of his sentence, James would “be placed on conditional release for an additional period of 10 years.” James did not object to or otherwise challenge imposition of the conditional release term at that time. Although the exact date is not clear from the record, James completed his sentence and was released from prison and placed on concurrent supervised release and conditional release sometime in the spring of 2001. After his supervised release period ended, James remained on conditional release. On June 24, 2002, James’s conditional release was revoked and he was reincarcerated.

Eight months after James returned to prison, 22 months after the district court amended the Criminal Judgment and Warrant of Commitment, and 39 months after the court imposed the conditional release term, he filed a petition for postconviction relief challenging, for the first time, the imposition of the 10-year conditional release term. In the petition, James argued that under State v. Garcia, 582 N.W.2d 879 (Minn.1998), and State v. Jumping Eagle, 620 N.W.2d 42 (Minn.2000), he had an absolute right to either have his sentence modified or be allowed to withdraw his plea because the conditional release term was not included in his original plea agreement. The postconviction court denied James’s petition. In so doing, the postcon-viction court found that there was no requirement that James be notified of the 10-year conditional release term before his probation was revoked, that James was notified of the conditional release term at his probation revocation hearing, and that James was not entitled to postconviction relief because his guilty plea was motivated by a desire to avoid incarceration.

Although the court of appeals affirmed the postconviction court, it did so on grounds not considered by the postconviction court. James v. State, 674 N.W.2d 216 (Minn.App.2004). The court of appeals concluded that under Minn. R.Crim. P. 15.05, subd. 1, James’s petition for post-conviction relief was untimely, and without reaching the merits of James’s petition, held that James was not entitled to post-conviction relief. Id. at 220. In this appeal, James raises two issues: (1) whether his petition for postconviction relief was untimely, thus barring relief; and (2) if the petition was timely, whether he is entitled to the relief sought. Because we conclude that James’s petition was timely and that he is entitled to relief under our decisions in Garcia and Jumping Eagle, we reverse the court of appeals and remand to the postconviction court for further proceedings.

I.

In this appeal, James challenges the court of appeals’ denial of his petition for postconviction relief. The state contends that James is not entitled to postconviction relief because he delayed 39 months before challenging the district court’s imposition of the 10-year conditional release term. The court of appeals held in favor of the state. James v. State, 674 N.W.2d at 220. The court reasoned that under Minn. R.Crim. P. 15.05, subd. 1, “James’s motion to withdraw his guilty plea, filed more than * * * three years after the imposition of the conditional-release term, was not timely.” James, 674 N.W.2d at 219.

When a criminal defendant seeks to withdraw a guilty plea under Rule 15.05, after the defendant has been sentenced, the motion to withdraw the plea must be raised in a petition for postconviction relief. See Minn.Stat. § 590.01 (2004). When determining whether to grant a petition for postconviction relief, we have consistently held that:

[D]elay is one relevant factor against granting relief, and in extreme cases may justify denial of relief. Rairdon v. State, 557 N.W.2d [318,] 322 [(Minn.1996)] (citing Gaulke v. State, 296 Minn. 487, 487, 206 N.W.2d 652, 652 (1973) (relief denied based on 25-year delay)). But we have a commitment to convicted defendants’ rights to at least one substantive review. Rairdon, 557 N.W.2d at 322 (9-year delay did not preclude review on the merits); Hoagland v. State, 518 N.W.2d 531, 536 (Minn.1994) (8-year delay alone did not preclude relief because the burden is on the state to establish undue prejudice by delay); Riggers v. State, 284 Minn. 543, 543-44, 169 N.W.2d 58, 59 (1969) (33-year delay did not preclude relief).

Butala v. State, 664 N.W.2d 333, 338 (Minn.2003); see also Fox v. State, 474 N.W.2d 821, 826 (Minn.1991) (appellant’s four-year delay in seeking relief is a relevant consideration in determining whether that relief should be granted); McMaster v. State, 551 N.W.2d 218, 218-19 (Minn.1996) (appellant’s 15-year delay in filing a petition for postconviction relief was “deliberate and inexcusable” and constituted abuse of judicial process because defendant purposefully delayed to avoid extradition for crimes committed in a foreign jurisdiction); Chapman v. State, 282 Minn. 13, 20-21,162 N.W.2d 698, 703 (1968) (“We have refused to order vacation of a plea of guilty when manifest injustice has not been demonstrated. We have held that delay in seeking relief is a relevant consideration.”). As evidenced by this line of cases, our treatment of postconviction petitions with respect to the issue of delay does not depend on whether the petitioner seeks to withdraw a guilty plea under Rule 15.05 or otherwise claims that the conviction obtained or the sentence imposed violates the criminal defendant’s rights.

The court of appeals noted that embedded within Rule 15.05, subdivision 1, is a specific timeliness requirement for plea withdrawal motions. The rule provides that:

The court shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice. Such a motion is not barred solely because it is made after sentence. If a defendant is allowed to withdraw a plea after sentence, the court shall set aside the judgment and the plea.

Minn. R.Crim. P. 15.05, subd. 1. Although the rule requires that the motion be timely made, the language of the rule does not provide guidance on how courts are to determine the timeliness of such a motion. However, when a plea withdrawal request is raised after sentencing in a petition for postconviction relief, we conclude that there is no reason to treat timeliness under Rule 15.05 differently from the manner in which delays in filing petitions for post-conviction relief are treated.

Accordingly, the timeliness of a petition to withdraw a guilty plea is a relevant consideration in determining whether that relief should be granted. See Butala, 664 N.W.2d at 338. Furthermore, a delay that is deliberate and inexcusable constituting an abuse of the judicial process, as in McMaster, is sufficient grounds to justify denial of relief solely on the basis that the petition is untimely. See McMaster, 551 N.W.2d at 218-19. The petition for postconviction relief at issue in this case was filed 39 months after James was first notified of the mandatory 10-year conditional release term at his probation revocation hearing. Thus, James’s delay is one relevant factor to be considered in determining whether to grant his requested postconviction relief. But, in light of our case law, the facts of this case, and the fact that James has not had at least one substantive review of his case, we see, as we did in Butala, “no substantive basis for denying review of [James’s] petition on the merits because of delay.” 664 N.W.2d at 338.

II.

We next consider whether the postconviction court committed error when it denied James’s petition for postconviction relief. Our scope of review on appeal from a postconviction court’s denial of relief is limited to determining whether the court abused its discretion, including whether there was sufficient evidence to support the court’s conclusions. Woodruff v. State, 608 N.W.2d 881, 884 (Minn.2000). “Determining what the parties agreed to in a plea bargain is a factual inquiry for the postconviction court to resolve.” State v. Rhodes, 675 N.W.2d 323, 326 (Minn. 2004), cert, denied, — U.S. -, 125 S.Ct. 1-34,160 L.Ed.2d 137 (2004). However, the interpretation and enforcement of plea agreements present legal issues that we review de novo. Jumping Eagle, 620 N.W.2d at 43.

In State v. Brown, we stated:

A valid guilty plea “must be accurate, voluntary and intelligent (ie., knowingly and understanding^ made).” Perkins v. State, 559 N.W.2d 678, 688 (Minn. 1997). The voluntariness requirement insures that a guilty plea is not entered because of any “improper pressures or inducements.” Brown v. State, 449 N.W.2d 180, 182 (Minn.1989). “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). “Allowing the government to breach a promise that induced a guilty plea violates due process.” United States v. Van Thoum-out, 100 F.3d 590, 594 (8th Cir.1996) (quoting Margalli-Olvera v. INS, 43 F.3d 345, 351 (8th Cir.1994)). On demonstration that a plea agreement has been breached, the court may allow •withdrawal of the plea, order specific performance, or alter the sentence if appropriate. See, e.g., Van Thoumout, 100 F.3d at 594 (citing Margalli-Olvera v. INS, 48 F.3d at 354-55); Correale v. United States, 479 F.2d 944, 950 (1st Cir.1973); State v. Trott, 338 N.W.2d 248, 252 (Minn.1983).
A guilty plea cannot be induced by unfulfilled or unfulfillable promises, including a promise of a sentence unauthorized by law. Where a sentence is illegal and therefore invalidly imposed, the voluntariness of the plea is drawn into question. See Chae v. People, 780 P.2d 481, 485-86 (Colo.1989); cf. Trott, 338 N.W.2d at 252 (noting unqualified promise of probation would permit the withdrawal of plea on ground of unfulfilled promise). But a plea agreement calling for an unauthorized sentence cannot be specifically enforced. See Garcia, 582 N.W.2d at 881-82.

606 N.W.2d 670, 674 (Minn.2000).

The postconviction court here evidently concluded that James’s case was factually similar to Brown. In Brown, we concluded that the record supported the postcon-viction court’s conclusion that “Brown understood the range of his sentence to be between [25 years’] probation and an executed double durational departure sentence [172 months].” 606 N.W.2d at 674. It was significant that, at the time of Brown’s guilty plea, he articulated his understanding of the agreement. Brown said:

If I successfully complete the program, then I would, then I would get the probation. If I don’t get into the program, then it would be a normal sentence. If I get in and goof, then it would be double. I do understand.

Id. at 672. Thus, as we noted in State v. Wukawitz, the addition of conditional release did not violate the terms of Brown’s plea agreement because:

(1) Brown’s plea was induced more by promise of an opportunity for probation and rehabilitation than by an agreed-upon sentence, and (2) Brown understood when he entered his plea that he could receive a sentence of up to 172 months and that this agreement was not breached when the conditional release term was added to the 86-month term of imprisonment.

662 N.W.2d 517, 524 (Minn.2003) (citing Brown, 606 N.W.2d at 674-75 & n. 6). On that basis, we concluded that Brown’s guilty plea was knowingly and understandingly made and held that the postconviction court did not err in denying Brown’s petition to withdraw his plea. Brown, 606 N.W.2d at 675.

In the case now before us, the postcon-viction court found that:

[T]he fact that no specific reference was made to the 10-year period of conditional release at the time the plea was taken simply doesn’t matter because Mr. James’ decision to plead pursuant to the plea agreement was based on the opportunity it gave him to avoid prison altogether if he successfully completed what was required of him under the probationary sentence. Formal disclosure and actual knowledge of the 10-year period of conditional release, had it occurred, simply would not have changed Mr. James’ decision about whether to plead guilty pursuant to the plea agreement proposal made by the State.

(Emphasis added.)

We disagree. This case bears a greater resemblance to Garcia and Jumping Eagle than to Brown. In Garcia and Jumping Eagle, we considered whether the defendants should be entitled to withdraw their guilty pleas because the plea agreements they entered into with the state did not contemplate the mandatory conditional release term. Garcia, 582 N.W.2d at 882; Jumping Eagle, 620 N.W.2d at 43. Garcia had pleaded guilty to attempted first-degree criminal sexual conduct in exchange for an 81-month sentence. Garcia, 582 N.W.2d at 880. The applicable mandatory conditional release term was not included in the plea petition, nor was it addressed at any of the hearings leading to the district court’s acceptance of the plea or sentencing. Id. at 880-81. Garcia became aware of the conditional release term a year and a half after the court accepted his plea at a resentencing hearing when the state made a motion to include the term in Garcia’s sentence. Id. at 881. We held that “the prosecution promised Garcia an 81-month executed sentence, which did not include a conditional release term * * *. This unqualified promise is unauthorized by law and therefore, Garcia must be allowed to withdraw from the plea agreement if he so chooses.” Id. at 882.

As in Garcia, the mandatory conditional release term at issue in Jumping Eagle was not mentioned to Jumping Eagle at the sentencing hearing, nor was it imposed by the court. Jumping Eagle, 620 N.W.2d at 43. Jumping Eagle was sentenced according to the agreement to 172 months in prison, a double durational upward departure from the presumptive sentence. Id. Execution of the sentence was stayed and Jumping Eagle was placed on 30 years’ supervised release. Id. Jumping Eagle’s probation was revoked five years later and at that time his prison sentence was executed and the mandatory conditional release term was imposed. Id. On appeal, we held that Jumping Eagle’s plea agreement was invalid because, with the imposition of the conditional release term, Jumping Eagle could serve a sentence in excess of the upper limit contemplated at the time he entered into the plea agreement. Id. at 44.

Here, James was not made aware of the applicable mandatory 10-year conditional release term at the time he entered his plea of guilty or when he was sentenced. James agreed to plead guilty to fourth-degree criminal sexual conduct in exchange for a 36-month sentence with execution stayed and placement on 10 years’ supervised release. The longest possible period of incarceration contemplated by James’s plea agreement was 36 months. With the addition of the mandatory conditional release term, James’s longest possible period of incarceration increased from 36 months to 156 months. Just as in Garcia and Jumping Eagle, but unlike in Brown, the addition of the 10-year conditional release term to James’s sentence resulted in a sentence that was in excess of the upper limit contemplated at the time he entered into the plea agreement. Because the 10-year conditional release term was mandatory, the plea agreement as agreed to by James was induced by an unfulfillable promise. We conclude therefore that the plea agreement was not knowingly and understandingly made. As a result, James is entitled to withdraw his plea or, if withdrawal would be unduly prejudicial to the state, have the agreement modified in a way that does not violate the agreement. See Wukawitz, 662 N.W.2d at 527-29.

Reversed and remanded.

ANDERSON, G. BARRY, J., took no part in the consideration or decision of this case.

BLATZ, Chief Justice

(dissenting).

I agree with the majority’s conclusion that James’s 39-month delay in bringing his petition is a relevant consideration in determining whether James is entitled to withdraw his guilty plea. However, because I disagree with the terms under which the majority has reversed and remanded, I respectfully dissent.

In a series of decisions addressing the relationship between plea agreements and the imposition of conditional release, our court has struggled to reconcile the requirements of constitutional due process, our rules of criminal procedure, and the conditional release statute. See State v. Wukawitz, 662 N.W.2d 517, 523-25 (Minn. 2003); Minn.Stat. § 609.109, subd. 7 (2004). This case focuses on the distinct procedural question of whether James’s motion was timely under Minn. R.Crim. P. 15.05, subd. 1, which provides that “[t]he court shall allow a defendant to withdraw a plea of guilty upon a timely motion and proof to the satisfaction of the court that withdrawal is necessary to correct a manifest injustice.” Thus, a successful plea withdrawal petition — in all cases — must meet two separate requirements: first, the plea must be timely; second, the petition must show that plea withdrawal is necessary to correct a manifest injustice.

In keeping with the plain language of Rule 15.05, subd. 1, we have repeatedly stated that timeliness is a relevant factor in determining whether a petitioner should be allowed to withdraw his plea. Rairdon v. State, 557 N.W.2d 318, 322 (Minn.1996) (“In general, delay in filing a petition for posteonviction relief is one relevant factor against granting relief.”); Fox v. State, 474 N.W.2d 821, 826 (Minn.1991) (“[Djelay in seeking relief is a relevant consideration in determining whether that relief should be granted.”).

Although we have repeated the principle that timeliness is a factor in evaluating plea withdrawal petitions, we have elected in the great majority of cases to substantively review petitions on the merits — regardless of their timeliness — if the issues raised have not previously received substantive review. See, e.g., Alanis v. State, 583 N.W.2d 573 (Minn.1998) (reviewing on merits when defendant filed postconviction petition to withdraw plea four months after sentencing); Perkins v. .State, 559 N.W.2d 678 (Minn.1997) (reviewing on merits when defendant delayed six months to file postconviction petition to withdraw plea); State v. Ecker, 524 N.W.2d 712 (Minn.1994) (reviewing on merits when defendant pleaded guilty to first-degree murder, lost a direct appeal of his sentence, then filed a postconviction petition to withdraw plea five years after sentencing).

While we prefer to -review petitioners’ claims on the' merits, in order for the timeliness requirement in Rule 15.05, subd. 1, to retain any vitality, that preference cannot be absolute. The .rule requires both timeliness and a showing of- manifest injustice. Accordingly, there may be cases in which a petitioner has satisfied the manifest injustice requirement of Rule 15.05, subd. 1, but nonetheless should be denied relief because the petition was not timely brought. This may be one of those cases.

In Wukawitz we struck a balance between the dictates of the conditional release statute and constitutional due process concerns. 662 N.W.2d at 527. That balance, however, is not insulated from our procedural rules of law. Rule 15.05, subd. 1, applies to every plea withdrawal petition — and for good reason. Under the reasoning in Wukawitz, if a defendant agrees to a specific sentence but does not receive notice of the imposition of a conditional release term until after his sentence is executed — as here — the defendant’s due process rights have -been violated and, accordingly, the “manifest injustice” prong of Rule 15.05, subd. 1, has.been met. See Wukawitz, 662 N.W.2d at 522, 526. However, because the defendant in Wukaivitz brought his plea withdrawal petition shortly after being notified of the imposition of a conditional release term, we had no occasion in that case to consider under what circumstances a petition that has met the manifest injustice prong of Rule 15.05, subd. 1, may nonetheless be untimely.

Here, although the postconviction court did not address the timeliness of James’s petition, the court of appeals found the issue dispositive. James v. State, 674 N.W.2d 216, 220 (Minn.App.2004). Although I agree with the court of appeals that there may be instances in which a court may conclude a defendant’s plea withdrawal petition is untimely — and thereby preclude relief under Rule 15.05, subd. 1 — I believe such a determination cannot be made by an appellate court on a record as slight as the one in this case, with no ruling on the timeliness issue by the postconviction court. Accordingly, I believe this case should be remanded to the postconviction court with instructions that the court consider whether James’s petition was timely.

Although Rule 15.05, subd. 1, does not provide clear guidance regarding how courts should determine whether a plea withdrawal petition is timely, the advisory committee comment to the Rule specifies that determining whether a plea withdrawal is timely “is left * * * to judicial decision.” Minn. R.Crim. P. 15.05 cmt. (citing Chapman v. State, 282 Minn. 13, 162 N.W.2d 698 (1968)). The comment follows ABA Standards regarding plea withdrawal, which state that a plea withdrawal request must be “made with due diligence, considering the nature of the allegations therein.” ABA Standards for Criminal Justice: Pleas of Guilty, Standard 14-2.1(b) (3d ed. 1999).

In determining the timeliness of a petition like the one at hand, it must be recognized that the balance struck by our court in Wukawitz already relaxes the strict requirements of the conditional release statute. In that case, we concluded that due process considerations mandate that if a defendant has not received notice of the imposition of conditional release until after sentencing, he is entitled to withdraw his plea or have his sentence modified to comport with his plea agreement. 662 N.W.2d at 526. In determining which option should be ordered by the district court, we stated that “the state should be allowed to present argument” regarding whether the state would be unduly prejudiced by allowing the defendant to withdraw his plea. Id.

In those cases in which the passage of time has unduly prejudiced the state’s ability to reprosecute, the remedy established in Wukawitz spares the state from having to retry a stale case in which a conviction would be unlikely. In turn, defendants receive the full benefit of the bargains they struck with the state and escape the imposition of conditional release.'

I believe that reconciling the remedy in Wukawitz with the timeliness requirement in Rule 15.05, subd. 1, requires postconviction courts to distinguish between the delay caused by the state and the delay caused by the defendant in evaluating whether the state has been unduly prejudiced. As noted earlier, the defendant in Wukawitz promptly moved to withdraw his plea; thus the timeliness of his motion was not at issue. Here, however, James served his prison sentence, remained free on conditional release for a number of months, violated the terms of his conditional release, and had his conditional release revoked. Then, only after having spent an additional eight months in prison for violating his conditional release, did he move to withdraw his plea.

By essentially waiving the timeliness requirement of Rule 15.05, subd. 1, the majority gives criminal sexual conduct defendants who have pled guilty and received notice of conditional release after sentencing a strong interest in delaying as long as possible before moving to withdraw their guilty pleas. Such delay all but assures that the state will not be able to reprose-cute, obtain a conviction, and impose the conditional release term as mandated by the legislature.

Accordingly, I would reverse and remand with instructions for the postconviction court to evaluate whether James’s petition was timely under Rule 15.05, subd. 1. The parties should be allowed to present argument regarding whether the state has been unduly prejudiced by the defendant’s delay in bringing his plea withdrawal petition. In making its decision regarding the timeliness of James’s petition, • the court should consider the degree to which the state’s nearly two-year delay in notifying James of the imposition of conditional release prejudiced its ability to reprosecute. If the postconviction court concludes that the state’s delay did not completely foreclose the possibility of successful reprose-cution, the court should then evaluate whether James’s 39-month delay unjustifiably frustrated the state’s ability to repro-secute, thereby assuring that James would completely escape the possibility of serving the mandated conditional release term. See Wukawitz, 662 N.W.2d at 527. Because the majority is not reversing and remanding with instructions for the post-conviction court to determine whether James brought his petition with due 'diligence, I respectfully dissent.

ANDERSON, PAUL H., J.

(dissenting).

I join the dissent of Chief Justice Blatz.

      . Notwithstanding the court's statement, the court's Criminal Judgment and Warrant of Commitment dated October 25, 1999, indicates that James was to be subject to a five-year conditional release term. On April 9, 2001, the court issued an Amended Criminal Judgment and Warrant of Commitment changing James's conditional release term from five to ten years.

      . Conditional release and supervised release run concurrently from the date the offender is released from prison after having served two-thirds of the executed sentence. See State v. Brown, 606 N.W.2d 670, 672 n. 2 (Minn.2000).


author: ANDERSON, G. BARRY, Justice.

text:
    STATE of Minnesota, Respondent, v. John Walter MOORE, Appellant.
    No. A03-1237.
    Supreme Court of Minnesota.
    July 14, 2005.

      John M. Stuart, State Public Defender, Marie L. Wolf, Assistant Public Defender, Minneapolis, MN, for Appellant.
    Mike Hatch, Attorney General, St. Paul, MN, Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant County Attorney, St. Paul, MN, for Respondent.
   OPINION

ANDERSON, G. BARRY, Justice.

On February 21, 2003, appellant John Walter Moore was found guilty of first-degree assault in violation of Minn.Stat. § 609.221, subd. 1 (2004) (great bodily harm), and third-degree assault in violation of Minn.Stat. § 609.223, subd. 1 (2004) (substantial bodily harm), in connection with an incident involving his girlfriend, Joyce Catchings. On appeal, Moore raised three issues: (1) that the district court committed reversible error by instructing the jury that the loss of a tooth constitutes the. permanent loss of the function of a bodily member; (2) that it was error to remove the language “creates a high probability of death” from the definition of “great bodily harm”; and (3) it was error to admit expert opinion testimony that Catchings’ injuries met the legal definition of “great bodily harm.” The court of appeals affirmed Moore’s conviction. State v. Moore, No. A03-1237, 2004 WL 2159024 (Minn.App. September 28, 2004) (unpublished). We reverse and remand.

On October 19, 2002, St. Paul Police Officer Felicia Reilly responded to a 911 call regarding a domestic dispute at 875 Geranium Street. When Reilly arrived at the scene a few minutes after receiving the call, she observed Catchings suffering from a bleeding mouth and, according to Reilly, Catchings appeared “very emotionally upset and obviously frightened.”

Catchings told Reilly that she had gone out the night before with a girlfriend and when she came home, her boyfriend, appellant Moore, was very angry. Catchings said that Moore grabbed her and dragged her into the bedroom, screaming “I’m going to kill you, I’m going to shoot you.” She told Reilly that Moore then threw her on the bed, choked her, and punched her three times in the mouth.

Reilly took Catchings to the emergency room at Regions Hospital. Doctor Mark Gibson Rayner examined Catchings and determined that she sustained an injury to the left side of her face and that her jaw was fractured. Rayner testified at trial that Catchings’ injury could have been caused by a punch with a fist. Rayner also testified that it was necessary to perform immediate surgery because the fracture had a high risk of infection if.not repaired within 24 hours. A titanium plate and screws were attached to Catchings’ jaw to align the fracture and allow the jaw to heal. Rayner testified that because the fracture did not heal properly, Catchings would require further surgery to remove dead bone and either insert new plates or a bone graft. In addition, because a wisdom tooth had punctured the roof of Catchings’ mouth, the tooth was not viable and had to be removed.

At trial, the state asked Rayner to review the legal definition of “great bodily harm,” an element of first-degree assault. Over defense objection, Rayner testified that Catchings’ injury met the legal definition of “great bodily harm” because it satisfied the criterion of a “protracted loss or impairment of the function of any bodily member.” He testified that her injury met the criterion because Catchings “has continued loss of her abilities to chew and to use her lower mandible and it’s undetermined on when that would be resolved.” Rayner also testified that if a tooth is a bodily member, Catchings suffered a loss of a bodily member and testified that, in his opinion, her injury was a “serious bodily injury.” On cross-examination, he testified that wisdom teeth are used for chewing if one has normal dentition.

The district court instructed the jury, over defendant’s objection, in relevant part, that:

Great bodily harm in this case means bodily harm that causes serious permanent disfigurement, or causes a permanent or protracted loss or impairment of the function of any part of the body, or other serious bodily harm. * * * The loss of a tooth is a permanent loss of the function of a bodily member.

The jury found Moore guilty of first- and third-degree assault, but not guilty of second-degree assault. Moore was sentenced to 139 months in prison. The court of appeals affirmed Moore’s conviction, holding that any error in instructing the jury was not prejudicial and that the district court did not abuse its discretion in admitting Rayner’s testimony. Moore, 2004 WL 2159024 at *4-5. We granted review.

I.

The first issue before us is whether the trial court erred by instructing the jury that “[t]he loss of a tooth is a permanent loss of the function of a bodily member.” When determining the adequacy of jury instructions, this court reviews for an abuse of discretion. State v. Peou, 579 N.W.2d 471, 475 (Minn.1998). The district court has considerable latitude in selecting language for jury instructions. Id. Jury instructions are viewed as a whole to determine whether they fairly and adequately explain the law. State v. Flores, 418 N.W.2d 150, 155 (Minn.1988). An instruction is error if it materially misstates the law. See State v. Pendleton, 567 N.W.2d 265, 269-70 (Minn.1997).

In Minnesota, the definition of “great bodily harm” includes an injury that “causes a permanent or protracted loss or impairment of the function of any bodily member or organ.” Minn.Stat. § 609.02, snbd. 8 (2004). The question of whether a particular injury constitutes great bodily harm is a question for the jury. State v. Bowers, 178 Minn. 589, 592, 228 N.W. 164, 165 (1929). The district court here, over defense objection, instructed the jury that “loss of a tooth is a permanent loss of the function of a bodily member.”

Moore argues that the instruction was improper because it effectively constituted a directed verdict for the prosecution on the element of great bodily harm. The court of appeals concluded that the instruction in this case correctly stated the law as set out in State v. Bridgeforth, 357 N.W.2d 393, 394 (Minn.App.1984), which held that there was a sufficient factual basis for a plea to first-degree assault because the loss of a tooth constitutes a permanent loss of the function of a bodily member. The court of appeals held that even if the instruction was error, it was harmless error. Moore, 2004 WL 2159024 at *4.

But there is a distinction between determining whether the evidence was sufficient to support a plea or conviction, as Bridge-forth concluded, and instructing the jury as a matter of law that an element of the offense has been established, as was done here. While the loss of a tooth in Bridge-forth was sufficient to support the guilty plea to first degree assault, here, instructing the jury that the loss of a tooth is the permanent loss of the function of a bodily member, in effect, instructed the jury that the definition of “great bodily harm” was established. Thus, the instruction removed from consideration by the jury the question of whether the loss of a tooth constitutes “great bodily harm,” violating the requirement that criminal convictions must “rest upon a jury determination that the defendant is guiltyof every element of the crime with which he is charged, beyond a reasonable doubt.” United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (holding it was error to instruct the jury that statements were material as a matter of law when materiality was a fact question for the jury); see also State v. Brice, 276 Kan. 758, 80 P.3d 1113, 1122-23 (2003) (holding it was error to instruct the jury that the term “great bodily harm” means a “through and through bullet wound”); United States v. Mentz, 840 F.2d 315, 319 (6th Cir.1988); United States v. White Horse, 807 F.2d 1426, 1430 (8th Cir.1986). Accordingly, we hold that the district court’s instruction that the loss of a tooth constituted the permanent loss'of the function of a bodily member was erroneous.

Having held that the instruction was error, we turn to the state’s contention that this error was harmless- beyond a reasonable doubt. The state argues that the error was harmless because there was sufficient evidence to prove great bodily harm. Moore, however, argues that the instruction constitutes reversible error. We agree with Moore.

In Rose v. Clark, the United States Supreme Court addressed the application of the harmless error test and stated in dicta that “harmless-error analysis presumably would not apply if a court directed a verdict for the prosecution in a criminal trial by jury.” 478 U.S. 570, 578, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). The Court stated that where the right to have a jury determine guilt is “altogether denied, the State cannot contend that the deprivation was harmless because the evidence established the defendant’s guilt; the error in such a case is that the wrong entity judged the defendant guilty.” Id.; see also White Horse, 807 F.2d at 1432 (holding that an instruction that deprived the jury of the ability to determine whether the facts essential to the conviction were established by the evidence was reversible error); Mentz, 840 F.2d at 323-24. Because a jury instruction that the loss of a tooth constitutes the permanent loss of the function of a bodily member deprives the defendant of the right to have the jury determine that every element of the charged offense has been established, harmless error analysis is not applicable. Accordingly, Moore’s conviction is reversed and we remand for a new trial.

II.

Because we conclude that the instruction at issue constitutes reversible error, no further analysis is necessary. But we choose to address the remaining two issues to provide guidance to the district court and counsel on remand.

Moore’s second argument also relates to the instruction defining “great bodily harm.” He argues that the district court erred by removing from the definition the alternative that the bodily injury “create[d] a high probability of death.” Great bodily harm is defined as: “bodily injury [1] which creates a high probability of death, or [2] which causes serious permanent disfigurement, or [3] which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or [4] other serious bodily harm.” Minn.Stat. § 609.02, subd. 8. Leaving out the first alternative definition-“creates a high probability of death” — the district court instructed the jury that:

Great bodily harm in this ease means bodily harm that causes serious permanent disfigurement, or causes a permanent or protracted loss or impairment of the function of any part of the body, or other serious bodily harm.

Moore argues that the inclusion of the language “creates a high probability of death” is necessary to accurately define “great bodily harm.” He argues that applying the rule of ejusdem generis — that the meaning of general words is restricted by preceding particular words — the general category of “other serious bodily harm” acquires meaning in the context of the three alternative categories of injuries in the great bodily harm definition. The state asserts that the four alternative definitions of great bodily harm are “equal, alternate and independent modalities of proof in the disjunctive” and that the instruction is properly tailored to the facts of the case. In the alternative, the state argues that if the rule of ejusdem generis applies, the court’s instructions gave adequate context to the term “other serious bodily injury.”

There is no precedent dealing specifically with the issue presented in the jury instruction here, but cases involving related issues do provide some guidance. In Cleveland v. United States, the United States Supreme Court addressed the meaning of the phrase “any other immoral purpose” under a federal statute making it an offense to transport in interstate commerce any woman or girl for prostitution, debauchery, or “any other immoral purpose.” 329 U.S. 14, 16, 67 S.Ct. 13, 91 L.Ed. 12 (1946). The Court concluded that under the ejusdem generis rule of construction, the general words — “any other immoral purpose” — were confined to the class of which they are a part and could not be used to enlarge it or be interpreted “more narrowly than the class.” Id. at 18, 67 S.Ct. 13. In Cheat-ham v. State, the Wisconsin Supreme Court addressed whether Wisconsin’s definition of great bodily harm was unconstitutionally vague. 85 Wis.2d 112, 270 N.W.2d 194 (1978). The Wisconsin Supreme Court rejected the defendant’s vagueness claim, stating that:

Presented with an instruction containing the entire statutory definition of “great bodily harm” a jury could reasonably interpret the phrase “other serious bodily injury” in that context, particularly so because of the preceding phrases which describe severe injuries. Even though the general phrase is not restricted to the meaning of the enumerated injuries, it acquires sufficient definition because of the nature of the injuries enumerated.

270 N.W.2d at 200.

While the issues in Cleveland and Cheatham differ from the issue in the case before us, the reasoning is useful. In both cases, the courts relied on the preceding enumerated categories in defining the general, catch-all phrase. Thus, in accord with the reasoning in Cleveland and Cheat-ham, we agree with Moore that the phrase “other serious bodily harm” should be taken in the context of the other three alternative definitions. We conclude that when a statute contains a “catch-all” definition, such as “other serious bodily harm,” the better practice, where not impractical because of statutory complexity or other reasons, is to include the alternative definitions in order to provide adequate context for the general term, and the district court should so instruct the jury upon retrial.

III.

The final issue in this appeal concerns the admission of expert testimony from Rayner that Catchings’ injuries met the legal definition of “great bodily harm.” The admission of an expert’s opinion generally rests within the discretion of the district court. State v. Myers, 359 N.W.2d 604, 609 (Minn.1984).

The district court, over defense objection, admitted the following testimony:

State: Based on your experience, your training and your familiarity with Joyce[ ] Catchings’ surgery, any follow-up visits or procedures, would you say that her injury meets the definition of great bodily harm?
Defense: Objection, foundation.
Court: Overruled.
Dr. Rayner: As regarding protracted loss or impairment of the function of any bodily member or organ, it does meet that criteria.
State: Why does it meet that criteria?
Dr. Rayner: She has continued loss of her abilities to chew and to use her lower mandible and it’s undetermined on when that would be resolved.
State: Was there a loss of a bodily member?
Dr. Rayner: Well, if you consider a tooth a member, yes.
State: How about the final part of the definition, serious bodily injury, would you consider her injury serious bodily injury?
Dr. Rayner: Yes, I would.

Moore argues it was permissible for Ray-ner to testify to “the nature and extent of the injury, details about the corrective surgery and its follow-up, and the prognosis,” but that it was impermissible for him to testify that the injury met the legal definition of great bodily harm.

Because an expert with special knowledge has the potential to unduly influence a jury, this court has stated that “[sjpecial care must be taken by the trial judge to ensure that the defendant’s presumption of innocence does not get lost in the flurry of expert testimony and, more importantly, that the responsibility for judging credibility and the facts remains with the jury.” State v. Grecinger, 569 N.W.2d 189, 193 (Minn.1997). Minnesota’s rules of evidence permit expert opinion testimony on ultimate issues if such testimony is helpful to the factfinder. See State v. Saldana, 324 N.W.2d 227, 230 (Minn.1982). Expert opinion testimony is not helpful if “the subject of the testimony is within the knowledge and experience of a lay jury and the testimony of the expert will not add precision or depth to the jury’s ability to reach conclusions about that subject which is within their experience.” State v. Helterbridle, 301 N.W.2d 545, 547 (Minn.1980). Under the helpfulness test, this court “has not allowed ultimate conclusion testimony which embraces legal conclusions or terms of art.” State v. DeWald, 463 N.W.2d 741, 744 (Minn.1990); see also Saldana, 324 N.W.2d at 231 & n. 5 (stating that while an expert may “testify to observations of physical and emotional conditions,” the doctor’s testimony that victim had been “raped” was “a legal conclusion which was of no use to the jury”); Minn. R. Evid. 704, comm. cmt. — 1977 (stating that opinions involving a legal analysis or mixed questions of law and fact are not deemed to be of any use to the trier of fact). In addition, this court has stated that “[wjhile the evidentiary rules do not bar all expert testimony concerning the ultimate issue, a district court may exclude ultimate issue testimony * * * when the testimony would merely tell the jury what result to reach.” State v. Lopez-Rios, 669 N.W.2d 603, 613 (Minn.2003).

Here, the court of appeals concluded that the district court did not abuse its discretion in admitting the testimony because “[b]y providing a medical explanation of the victim’s injury in the context of the legal definition, Rayner’s testimony was helpful to the jury.” Moore, 2004 WL 2159024 at *5. But Rayner’s testimony did not just provide a medical explanation in the context of the legal definition; Rayner testified that the injury met the legal definition. While we recognize that generally, and subject to the requirements of rule 704, ultimate opinion testimony is admissible, the manner in which the testimony was elicited in this case was not helpful to the jury because it “merely [told] the jury what result to reach.” Lopez-Rios, 669 N.W.2d at 613. Whether Catchings’ injuries constituted “great bodily harm” was a question within the knowledge and experience of the jury. Rayner’s legal conclusions did not “add precision or depth to the jury’s ability to reach conclusions about that subject which is within their experience.” See Helterbridle, 301 N.W.2d at 547. Because we have clearly determined that the instruction regarding the loss of a tooth was reversible error, we need not determine here whether the admission of the expert testimony was harmless. On remand, Rayner may testify to the nature and extent of the injury, treatment rendered, and the future prognosis, but testimony that her injuries met the legal standard of serious bodily injury is not admissible.

Reversed and remanded.

      . At trial, Catchings' testimony differed from her statement to Reilly on the day of the incident. Catchings testified that Moore hit her on her arms and legs, but she could not recall if he hit her in the mouth. She testified that she thought it was the pressure of Moore lying on her that caused her mouth to bleed. When Moore was arrested on October 25, 2002, he admitted to the investigator that he may have hit Catchings once or twice, but was not sure if he broke her jaw.

      . Minnesota's definition was modeled on the Wisconsin code and is the same as the Wisconsin definition. See Minn.Stat. Ann. § 609.02 comm. cmt. — 1963.

      . Under Minn. R. Evid. 704, "[tjeslimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”