author: KAPSNER, Justice.

text:
    2008 ND 4
    STATE of North Dakota, Plaintiff and Appellee v. James Eugene WEGLEY, Defendant and Appellant.
    No. 20070027.
    Supreme Court of North Dakota.
    Jan. 17, 2008.

      Nicole Elian Foster, State’s Attorney, Williston, N.D., for plaintiff and appellee.
    Bonnie Louise Storbakken, Bismarck, N.D., for defendant and appellant.
   KAPSNER, Justice.

[¶ 1] James Eugene Wegley appeals from a criminal judgment entered after a jury found him guilty of gross sexual imposition. We hold the district court did not err in admitting testimony about the victim’s out-of-court statement, the court did not abuse its discretion in denying Weg-ley’s request for a ruling that evidence of his prior rape conviction would not be admissible regardless of his trial testimony, and there was sufficient evidence to support his conviction. We affirm.

I

[¶2] The State charged Wegley with gross sexual imposition, alleging that in September 2005, he engaged in sexual contact with a person less than fifteen years old. Wegley is the grandfather of the alleged victim, who was seven years old in September 2005, and he is the father of the child’s mother.

[¶ 3] Eight days before trial, the State made a pretrial motion under N.D.R.Ev. 803(24) for the admission of out-of-court statements made by the child to her mother at the time of the alleged act and to Monique Goff during a subsequent forensic interview that was videotaped. The State’s motion said “[sjome of the out-of-court statements ... will be offered as prior consistent statements, so are not technically hearsay.” The district court heard arguments on the State’s motion on the first day of trial, in conjunction with jury selection. The State’s offer of proof about the child’s out-of-court statements consisted of comments to the court by the prosecuting attorney:

The statement to the mother actually occurred at the time the event was occurring. The facts would be that — or the facts the testimony would show is that when [the mother] walked into the room where this was occurring, a kind of scuffle ensued between [the mother] and the defendant.
And at that point [the mother] turned to her daughter and said, “He was touching you.” And the daughter shook her head “Yes.” [The mother] then asked the daughter, “Has this happened before?” And the daughter shook her head, “Yes.”
The social worker, Your Honor, it was in the course of a forensic interview. During the interview the social worker asked the little girl.... Asked [the child] if, you know, if she knew why she was there and [the child] said no.
The social worker says to [the child], “Well, you are here because your mom was worried that your grandpa Gene had had some secret touches or private touches with you.” [The child] says, “I don’t know.”
Monique pursues — Monique is the social worker, pursues it a little bit. After a couple of times of [the child] saying, “I don’t know, I don’t know”, Monique asked her specifically, “Did your grandpa Gene touch you?” And [the child] either said, “Yes” or shook her head “Yes.” I’d have to review the video, Your Honor.
Monique then asked [the child] to tell her where. [The child] kind of said— didn’t respond or maybe said I don’t know. Again, I’d have to review the video.
Monique then asked if [the child] would be willing to show her on an atomically [sic] correct picture of a little girl where grandpa Gene touched her and [the child] pointed to on the picture. And I do have a copy of the picture. Did point to it twice in the vaginal area.

[¶ 4] The district court did not immediately rule on the State’s motion. After jury selection was completed on the first day of trial, the State called the child as its first witness, and she testified:

Q. ... Okay. Do you have grandpas and grandmas ... ?
A. Yes.
Q. Is one of your grandpas in the room today?
A. Yes.
Q. I’m going to get out a picture okay? [D]oes your mom and dad’s bedroom, does that have a TV in the room?
A. Yes.
Q. Do you sometimes like to watch TV in your mom and dad’s room?
A. Yes.
Q. [I]s that a picture of your mom and dad’s bedroom?
A. Yes.
Q. Time for some other questions, okay? Was there a time when you were watching TV in your mom’s room?
A. Yes.
Q. When Grandpa Gene came in there?
A. Yes.
Q. Were you wearing your pajamas?
A. Yes.
Q. Were they pants or a nightgown?
A. Pants.
Q. Did you have your underwear on?
A. Yes.
Q. When you were laying on mom’s bed, did you lay over the covers or under the covers?
A. Under the covers.
Q. Sometimes I forget things, so I have to write them down. That time when Grandpa Gene came in, did he touch you?
A. Yes.
Q. Where?
A. In my private parts.
Q. How did you feel when grandpa did that? Were you scared?
A. Yes.
Q. Did your mom come into the room when Grandpa Gene was doing that?
A. Yes.
Q. How did you feel when mom came in the room?
A. Scared.
Q. Did you tell your mom what grandpa did to you? Is that a hard question?
A. Yes.
Q. Did you tell your mom that Grandpa Gene had touched you?
A. Yes.
Q. You’re doing good. [D]id your mom see what Grandpa Gene was doing?
A. Yes.
Q. Did she get upset?
A. Yes.
Q. [D]o you remember what your mom did when Grandpa Gene was — when she got upset?
A. No.
Q. No. Okay. That’s okay.... I don’t have anymore questions to ask you.

On cross-examination, the child testified:

Q. ... Now, do you remember your mom talking to you about your grandpa?
A. No.
Q. Do you remember your mom telling you?
A. No.
Q. That grandpa was touching you?
A. No.
Q. Have you ever talked to your mom about some of those questions that that lady just asked you?
A. No.
Q. You don’t remember or you haven’t talked with her about it? Do you remember talking to anyone else?
A. No.
Q. About what happened?
A. No.
Q. No? Do you remember your mom taking you to a place to visit with somebody?
A. No.
Q. Remember anyone by the name of Monique.
A. No.
Q. Okay. Do you remember talking to anyone else?
A. No.
Q. Other than your mom?
A. No.

[¶ 5] After the child testified, the district court adjourned for the day. On the morning of the second day of trial, the court analyzed the State’s offer of proof about the child’s out-of-court statement to the mother under N.D.R.Ev. 803(24) and granted the State’s pretrial motion to admit the mother’s testimony about the child’s out-of-court statement.

[¶ 6] Also on the morning of the second day of trial, the State moved to withdraw its pretrial motion under N.D.R.Ev. 803(24) regarding Goffs testimony. The district court granted the State’s motion to withdraw and did not view the videotape, but nevertheless analyzed the State’s offer of proof about the child’s out-of-court statement to Goff under N.D.R.Ev. 803(24) and ruled the statement was admissible.

[¶ 7] Immediately thereafter, the State called the child’s father to testify and then called Goff to testify. Goff testified without a contemporaneous objection by Weg-ley that during the forensic interview of the child, the child said that something happened with her grandfather, and when Goff asked the child what part of her body her grandfather had touched, the child pointed to a vagina on an anatomical drawing, which she labeled as her “pee pee.” Goff testified the child was not able to verbalize anything more and did not want to talk about what happened.

[¶ 8] The State then called the child’s mother to testify. The child’s mother testified without a contemporaneous objection by Wegley that she came upon Wegley and the child in the mother’s bedroom:

Q. What did you see when you were standing in the doorway?
A. Gene kissing her.
Q. What kind of kiss was it?
A. Like a long kiss on the lips. A really long, kind of leaned over, weird kiss.
Q. Did you notice anything else about your father?
A. Yes, his hand was under the blanket.
Q. Then what did you do?
A. Walked over there, pulled off the blanket.
Q. What did you see?
A. Him rubbing her privates.
Q. I don’t mean to make this more difficult, but ...
A. Her vagina, whatever you want to say.
Q. Did you see his hand directly on?
A. Yeah. And his fingers moving around.
Q. Did [the child] still have her underwear on?
A. Yes.
Q. Do you need a second?
A. I’m okay.
Q. After that, what happened?
A. I think there was some — is what I can remember is I looked at [the child] and said something — “He was touching private, has he did that before?” And she nodded yes and then I think said you are a pervert.
And I started swinging, hitting him. And then he started saying, “I’m sorry, I’m sorry, I’ll leave, I’ll leave.”
And then I remember following him out to the kitchen and screaming and stopping and hitting him some more.
Q. [I]s there any doubt in your mind as to where you saw the defendant’s hand?
A. No.
Q. Any doubt in your mind to having seen his fingers moving?
A. No.
Q. This obviously is a difficult topic for you and I am sorry. Do you think it took your father a while to realize you were standing there?
A. Yes.
Q. Why?
A. In his own little mode, I guess, mind. Too busy concentrating on what he was doing or something.
Q. He didn’t notice you in the doorway at all?
A. No.

On redirect, the mother pointed to the vagina on an anatomical drawing of a female to show where she saw Wegley’s fingers touching and rubbing the child.

[¶9] At trial, the district court also denied the State’s pretrial motion to allow the State to introduce evidence under N.D.R.Ev. 404(b) that Wegley had a 1975 conviction for rape. After the State rested, Wegley asked the court for a “clarification” under N.D.R.Ev. 609 “that that conviction cannot be used regardless of what the testimony of [Wegley] may be.” The court denied Wegley’s request, and he did not testify at trial. A jury found Wegley guilty of gross sexual imposition.

II

[¶ 10] Wegley argues the district court erred in admitting testimony about the child’s out-of-court statements to her mother and to Goff without sufficient guarantees of trustworthiness and reliability under the requirements of N.D.R.Ev. 803(24).

[¶ 11] Rule 803(24), N.D.R.Ev., outlines a hearsay exception for a child’s out-of-court statement about sexual abuse:

An out-of-court statement by a child under the age of 12 years about sexual abuse of that child or witnessed by that child is admissible as evidence (when not otherwise admissible under another hearsay exception) if:
(a) The trial court finds, after hearing upon notice in advance of the trial of the sexual abuse issue, that the time, content, and circumstances of the statement provide sufficient guarantees of trustworthiness; and
(b) The child either:
(i) Testifies at the proceedings; or
(ii) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.

[¶ 12] We apply an abuse of discretion standard of review to a district court’s evidentiary rulings under N.D.R.Ev. 803(24), and we will not reverse the court’s ruling unless it is arbitrary, capricious, or unreasonable, or a misinterpretation or misapplication of the law. State v. Hirschkorn, 2002 ND 36, ¶ 7, 640 N.W.2d 439. In Hirschkorn, at ¶¶ 11, 13, 18 (citations omitted), we explained the purpose of N.D.R.Ev. 803(24) and its application:

Enactment of child-hearsay rules is intended to ensure that child abusers do not go free merely because the prosecutor is unable to obtain witnesses to the abuse other than the child, who is unable to testify about the abuse. While the child-hearsay rule permits the admission of otherwise inadmissible hearsay evidence in order to facilitate prosecution, the rule’s requirements are also intended to safeguard the accused’s right to confront the witnesses testifying against him. The child-hearsay rule is intended to balance the interests of the accused and the interests of the truth-seeking process. Indicia of reliability and guarantees of trustworthiness are constitutionally required before admission of hearsay statements to preserve the Sixth Amendment’s basic interest in requiring “confrontation,” even though an
accused cannot directly confront the hearsay declarant. Because of the importance of the accused’s confrontation rights, the safeguards built into the child-hearsay rule must be strictly observed.
Under N.D.R.Ev. 803(24)(a), the child’s hearsay statements are not admissible unless the trial court finds that “the time, content, and circumstances of the statement provide sufficient guarantees of trustworthiness.” Factors to consider include spontaneity and consistent repetition, the mental state of the declarant, the use of terminology unexpected of a child of similar age, and a lack of a motive to fabricate. A trial court must make explicit findings as to what evidence it relied upon regarding the factors and explain its reasons for either admitting or excluding the testimony so a defendant can be assured the required appraisal has been made, and so this Court can properly perform its appellate review function. Although written findings are preferred, duly recorded oral findings satisfy the requirements of the child-hearsay rule.
A trial court must make an in-depth evaluation of the proposed testimony. A trial court should not ... merely quote the terms of the rule and order the testimony admitted, but should make specific findings of the facts relevant to reliability and trustworthiness and explain how these facts support the conclusion of admissibility.... [N]ondetailed findings might suffice when there is an adequate factual basis in the offer of proof to support the trial court’s determination .... Moreover, in reviewing a trial court’s evidentiary ruling under N.D.R.Ev. 803(24), we are limited to reviewing the proponent’s offer of proof made at the pretrial hearing and may not consider the entire evidence admitted during the trial to support the earlier ruling.

[¶ 13] When the mother and Goff testified at trial about the child’s nod and gesture, Wegley did not make a contemporaneous objection. Even if a defendant objects to hearsay testimony at a pretrial hearing on a motion under N.D.R.Ev. 803(24), the defendant’s failure to object at trial limits this Court’s inquiry to determining whether the admission of that testimony into evidence constitutes obvious error affecting substantial rights under N.D.R.Crim.P. 52(b). State v. Krull, 2005 ND 63, ¶ 6, 693 N.W.2d 631; State v. Ramsey, 2005 ND 42, ¶ 12, 692 N.W.2d 498; Hirschkorn, 2002 ND 36, ¶ 6, 640 N.W.2d 439; State v. Wiest, 2001 ND 150, ¶ 6, 632 N.W.2d 812. Here, there was no hearing and finding on the State’s pretrial motion “in advance of the trial of the sexual abuse issue” as contemplated by N.D.R.Ev. 803(24)(a). Rather, the hearing and decision on the pretrial motion occurred during the trial, and we do not condone that delay in the resolution of this issue. Although the district court ruled on the State’s motion after argument by counsel on the morning of the second day of trial, the State presented testimony from other witnesses before Goff and the mother testified and Wegley did not contemporaneously object to their testimony. Under these circumstances, Wegley’s failure to object during the testimony by Goff and by the mother limits this Court’s inquiry to deciding whether the admission of that testimony constitutes obvious error.

[¶ 14] To establish obvious error, a defendant must show (1) error, (2) that is plain, and (3) that affects substantial rights. Krull, 2005 ND 63, ¶ 6, 693 N.W.2d 631; Ramsey, 2005 ND 42, ¶ 12, 692 N.W.2d 498; Hirschkorn, 2002 ND 36, ¶ 6, 640 N.W.2d 439; Wiest, 2001 ND 150, ¶ 6, 632 N.W.2d 812. An alleged error does not constitute obvious error unless it is a clear deviation from an applicable legal rule under current law. Krull, at ¶ 6; Ramsey, at ¶ 12; Hirschkom, at ¶ 6. To affect substantial rights, a plain error must have been prejudicial, or have affected the outcome of the proceeding. Hirschkom, at ¶ 20. Analyzing obvious error requires examination of the entire record and the probable effect of the alleged error in light of all the evidence. Id. Even if a defendant establishes obvious error affecting substantial rights, the decision to correct the error lies within our discretion, and we will exercise that discretion only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. at ¶ 22.

A

[¶ 15] We initially consider Weg-ley’s claim that the district court erred in admitting the mother’s testimony about the child’s out-of-court nod in response to the mother’s statement “He was touching private, has he did that before?”

[¶ 16] Under N.D.R.Ev. 801(a)(2), a “statement” is “nonverbal conduct of a person, if it is intended by the person as an assertion.” The child’s nonverbal conduct, a nod, in response to the mother’s statement was intended as an assertion and is a “statement” under N.D.R.Ev. 801(a). See N.D.R.Ev. 801, Explanatory Note. See also 5 Weinstein’s Federal Evidence § 801.10[2][b] (under identical federal rule, “[c]onduct that is usually viewed as an assertion includes gestures such as nodding or pointing in response to a question”).

[¶ 17] Although the child’s nod is a statement, a statement is not hearsay under N.D.R.Ev. 801(d)(l)(ii) if the declar-ant testifies at trial and is subject to cross-examination concerning the statement, and the statement is consistent with the declar-ant’s testimony and is offered to rebut an express or implied-charge against the de-clarant of recent fabrication or improper influence or motive. State v. Leinen, 1999 ND 138, ¶¶ 8-15, 598 N.W.2d 102. In Leinen, at ¶ 9 (citations omitted), this Court explained the three requirements for nonhearsay under N.D.R.Ev. 801(d)(l)(ii):

First, the declarant must have testified and been subject to cross-examination about the statement. Second, the statement must be offered to rebut a charge of recent fabrication or improper influence or motive. And finally, the statement must be a prior consistent statement made before the charge of recent fabrication or improper influence or motive arose.

[¶ 18] Here, the district court analyzed the mother’s testimony about the child’s out-of-court statement under N.D.R.Ev. 803(24) and granted the State’s motion to admit the mother’s testimony under that hearsay exception. We conclude, however, the mother’s testimony about the child’s prior statement was admissible because it is not hearsay under the requirements of N.D.R.Ev. 801(d)(l)(ii). During Wegley’s opening statement to the jury, his counsel said that “[w]hat we are disputing is the state’s rendition of the touching and more specifically that there was no sexual contact whatsoever.” After the child had testified about her statement to her mother, the mother testified that when she discovered Wegley in her bedroom with the child, she looked at the child and “said something — ‘He was touching private, has he did that before?’ And [the child] nodded yes.” The mother’s testimony was consistent with the child’s prior testimony that Wegley had touched her in her private parts and that she told her mom that Wegley had touched her. The mother’s testimony rebutted a charge of recent fabrication or improper influence or motive and was not hearsay under N.D.R.Ev. 801(d)(l)(ii). See Ramsey, 2005 ND 42, ¶¶ 13-16, 692 N.W.2d 498; Leinen, 1999 ND 138, ¶¶ 8-15, 598 N.W.2d 102; State v. Neufeld, 1998 ND 103, ¶¶ 18-22, 578 N.W.2d 536; State v. Burgard, 458 N.W.2d 274, 278-79 (N.D.1990); State v. Reinart, 440 N.W.2d 503, 507 (N.D.1989); State v. Janda, 397 N.W.2d 59, 61-62 (N.D.1986); State v. Jenkins, 326 N.W.2d 67, 71 (N.D.1982). We hold the mother’s testimony about the child’s nod was not hearsay and the admission of that testimony into evidence was not error under the first prong of the framework for analyzing obvious error.

B

[¶ 19] Wegley argues the district court erred in admitting Goffs testimony. He asserts Goff was allowed to testify about the child’s gesture to the vagina on an anatomical drawing used during the videotaped forensic interview. He argues the court allowed Goffs testimony about that gesture without reviewing the videotape to ensure trustworthiness and reliability under N.D.R.Ev. 803(24).

[¶ 20] Although the State claims Goff did not testify about any statements the child made to her, Goff testified to a gesture the child made to an anatomical drawing. As we have already explained, under N.D.R.Ev. 801(a)(2), nonverbal conduct is a statement if it is intended as an assertion. In the context of the State’s offer of proof, the child’s gesture was intended as an assertion, and we therefore reject the State’s claim that Goffs testimony about the child’s gesture was not a statement under N.D.R.Ev. 801(a).

[¶ 21] Although the district court granted the State’s motion to withdraw its pretrial motion under N.D.R.Ev. 803(24) regarding Goffs testimony, the court nevertheless analyzed the State’s offer of proof about the child’s out-of-court statement to Goff under N.D.R.Ev. 803(24) and ruled the statement was admissible. We conclude, however, Goffs testimony about the child’s prior out-of-court statement was admissible because it is not hearsay under N.D.R.Ev. 801(d)(1)(h). The child’s prior out-of-court statement to Goff is consistent with the child’s trial testimony that Weg-ley touched her in her private parts. See United States v. Owens, 484 U.S. 554, 559-64, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988) (holding inability of witness to recall either the underlying events that are the subject of extra-judicial statement or the circumstance under which the statement was given does not have Sixth Amendment consequences and interpreting phrase “subject to cross-examination concerning statement” in F.R.Ev. 801(d)(1)(C) to mean a witness who is placed on the stand, under oath, and responds to questions). As with the mother’s testimony, Goffs testimony also rebutted a charge of recent fabrication or improper influence or motive and was not hearsay under N.D.R.Ev. 801(d)(l)(ii). We hold Goffs testimony about the child’s out-of-court statement was not hearsay and the admission of that testimony into evidence was not error under the first prong of the framework for analyzing obvious error.

Ill

[¶ 22] Wegley argues the district court erred in denying his motion to exclude evidence of his 1975 conviction for rape. The jury did not hear evidence of Wegley’s 1975 conviction for rape. However, Weg-ley claims the court’s denial of his motion to prevent the State from using that conviction “at all” affected his decision not to testify, which could have produced a different result.

[¶ 23] Decisions on the admissibility of evidence are discretionary, and this Court has rejected similar claims in areas of trial strategy and a defendant’s decision to testify. See Krull, 2005 ND 63, ¶ 10, 693 N.W.2d 631; State v. Carlson, 1997 ND 7, ¶¶ 11-13, 559 N.W.2d 802. In Krull, at ¶ 10, we rejected the defendant’s assertion that if the district court had not allowed into evidence non-admissible hearsay, the defendant’s trial strategy might have been different or the defendant might have taken the stand in his own defense. We said the defendant’s assertion was purely speculation and not supported by any offer of proof in the record. Id. Here, Wegley’s claims also are speculative and not supported by an offer of proof. Moreover, Wegley has not demonstrated that he was entitled to a blanket ruling to prevent the State from using the prior conviction regardless of what his trial testimony may have been. We conclude the district court did not abuse its discretion in denying Wegley’s request for a ruling that his prior conviction could not be used regardless of what his testimony may be.

rv

[¶ 24] Wegley argues the evidence was insufficient to support his conviction. He claims any touching was accidental and his explanation makes more sense than the State’s allegations.

[¶ 25] When a defendant challenges the sufficiency of the evidence to support a conviction, the defendant must show that the evidence, when viewed in the light most favorable to the verdict, reveals no reasonable inference of guilt. State v. Igou, 2005 ND 16, ¶ 5, 691 N.W.2d 213. On appeal, we review the record to determine if there is competent evidence allowing the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. Id. A conviction rests upon insufficient evidence only when no rational fact finder could have found the defendant guilty beyond a reasonable doubt after viewing the evidence in a light most favorable to the prosecution and giving the prosecution the benefit of all inferences reasonably to be drawn in its favor. Id.

[¶ 26] Under N.D.C.C. § 12.1-20-03(2)(a) a person who engages in sexual contact with another is guilty of an offense if the victim is less than 15 years old. Sexual contact is defined as “any touching, whether or not through the clothing or other covering of the sexual or other intimate parts of the person ... for the purpose of arousing or satisfying sexual or aggressive desires.” N.D.C.C. § 12.1-20-02(4).

[¶ 27] The mother testified she observed Wegley “rubbing [the child’s] privates ... [h]er vagina” outside the child’s clothing and saw Wegley’s “fingers moving around.” The mother further testified that Wegley “didn’t notice [her] in the doorway at all,” because he was “in his own little mode” and was “[t]oo busy concentrating on what he was doing.” The child also testified Wegley touched her “private parts.” We do not reweigh the evidence, and on this record, we conclude there is sufficient evidence, viewed in the light most favorable to the verdict, to support Wegley’s conviction for gross sexual imposition. We therefore reject his claim that the evidence was insufficient to support his conviction.

V

[¶ 28] We affirm the judgment.

[¶ 29] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ., concur.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    STATE PUBLIC DEFENDER, Plaintiff, v. IOWA DISTRICT COURT FOR UNION COUNTY, Defendant.
    No. 05-1144.
    Supreme Court of Iowa.
    Jan. 4, 2008.
    Thomas G. Becker, State Public Defender, and Mark C. Smith, First Assistant State Public Defender, for plaintiff.
    Andrew J. Knuth of Rutherford, Trewet & Knuth, Atlantic, for defendant.
   LARSON, Justice.

The Union County District Court appointed attorney Andrew Knuth to represent an indigent defendant in a criminal case. Knuth finished his representation of the defendant and filed his fee claim; however, he filed it after the forty-five-day deadline provided by statute. The State Public Defender, who is charged with the responsibility of reviewing such claims, denied the claim as untimely. The district court, nevertheless, ordered the public defender to pay the claim, and the public defender brought this certiorari action. We sustain the writ.

I. Standard of Review.

In a certiorari case, the district court’s ruling is reviewed for correction of errors at law. State Pub. Defender v. Iowa Dist. Ct., 731 N.W.2d 680, 683 (Iowa 2007).

“A writ of certiorari lies where a lower board, tribunal, or court has exceeded its jurisdiction or otherwise acted illegally.... 'Illegality exists when the court’s findings lack substantial eviden-tiary support, or when the court has not properly applied the law.’ ”

Id. (quoting State Pub. Defender v. Iowa Dist. Ct, 721 N.W.2d 570, 572 (Iowa 2006)).

II. Discussion.

Compensation for court-appointed attorneys is governed by Iowa Code chapters 13B and 815 (2005), as well as Iowa Administrative Code chapter 493. The public defender is authorized to review all claims for payment of indigent defense costs and may deny such a claim if, among other things, it is not timely. Iowa Code § 13B.4(4)(c)(2)(a). A claim is untimely when it is not “submitted to the State Public Defender within forty-five days of the sentencing, acquittal, or dismissal of a criminal case or the final ruling or dismissal of any other type of case.” Iowa Code § 815.10A(2).

Knuth’s client was sentenced on March 18, 2005, and Knuth filed his fee claim on May 11, 2005 — fifty-four days after sentencing. It is clear, and apparently undisputed, that Knuth did not comply with the statutory timelines required for submitting a fee claim. Despite the failure to file a timely claim, the district court waived the statutory forty-five-day deadline and approved the claim. The public defender argues that the district court did not have the authority to approve a fee claim under these conditions.

Two statutes govern fee claims in indigent-defense cases. Iowa Code section 815.10A(2) establishes a deadline for filing:

Claims for compensation and reimbursement submitted by an attorney appointed after June 30, 2004, are not considered timely unless the claim is submitted to the state public defender within forty-five days of the sentencing, acquittal, or dismissal of a criminal case or the final ruling or dismissal of any other type of case.

Another statute prescribes the duties of the State Public Defender. Under that statute,

[t]he state public defender may review any claim for payment of indigent defense costs and may take any of the following actions:
(2) Deny the claim under any of the following circumstances:
(a) If it is not timely.

Iowa Code § 13B.4(4)(c).

Iowa Code section 13B.4(4)(d) provides that

the attorney may seek review of any action or intended action denying or reducing any claim by filing a motion with the court with jurisdiction over the original appointment for review.

However, that review is limited. “If a claim or portion of the claim is denied, the action of the state public defender shall be affirmed unless the action conflicts with an administrative rule or the law.” Iowa Code § 13B.4(4)(d)(5). The claimant in this case does not contend that the action of the public defender was contrary to statute or administrative rule.

Under Iowa Code section 13B.4(8), “[t]he state public defender shall adopt rules, as necessary, pursuant to chapter 17A to administer this chapter and chapter 815.” Administrative code rule 493— 12.2(6) provides that, “[f]or cases to which the attorney is appointed after June 30, 2004, claims that are not timely will be denied.” Nothing in any of the statutes we have discussed or this administrative rule suggest any exceptions to the denial rule for untimely claims, nor is there any provision for waiving the requirement of timely filing.

Our reading of these statutes and the administrative rule applying them leads us to conclude that the district court exceeded its authority by ordering payment of the claim in question. We therefore sustain the writ of certiorari. The claimant’s alternative argument, that the public defender was estopped from denying the claim, was not raised in the district court, and we therefore deem it waived.

WRIT SUSTAINED.


author: WIGGINS, Justice.

text:
    Sam ROBINSON, Appellant v. FREMONT COUNTY, Iowa, Appellee.
    No. 06-1121.
    Supreme Court of Iowa.
    Jan. 25, 2008.
    A.W. Tauke of Porter, Tauke & Ebke, Council Bluffs, for appellant.
    Richard D. Crowl of Stuart Tinley Law Firm, LLP, Council Bluffs, for appellee.
   WIGGINS, Justice.

In this appeal, we must determine whether the district court erred in ruling the county was only required to reimburse the holder of three tax certificates the amount he paid for the certificates and pay him a ratable part of the interest and costs. Because the district court erred when it held the county could compromise the taxpayers’ liability after it assigned the certificates, and a genuine issue of material fact exists as to whether the payment made by the taxpayers redeemed the parcels, we reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.

I. Background Facts and Proceedings.

Based upon the summary judgment record, we find the undisputed facts as follows. In June of 1989 the property tax on three parcels of land owned by Jeffrey and Suzanne Barrett became delinquent. Fremont County, Iowa conducted a public bidder sale pursuant to Iowa Code section 446.18 (1989). There were no bids, so the county became the default owner of the tax sale certificates pursuant to section 446.19. The county never served a notice of redemption on the Barretts. Fourteen years after the county became the default owner, it notified the Barretts of its intention to assign the certificates if they did not pay the back taxes. The Barretts did not respond.

In 2004 the county approached Sam Robinson and asked him to purchase the three tax certificates so the county could put the parcels back on the tax roll. As of March 31, 2004, the total unpaid taxes plus interest and costs on the parcels was $13,362.78. On April 13 Robinson offered to pay $1500 for the three tax certificates. On May 11 the county’s board of supervisors adopted a resolution assigning the certificates to Robinson. The resolution stated the reason for assigning the certificates was the county’s desire to avoid the expenses of the tax redemption procedure and the expenses of abating any nuisances on the parcels.

On June 29 Robinson served the Bar-retts a notice informing them that their right to redeem the parcels would expire in ninety days. On August 26, a few days prior to the expiration of the redemption period, the county’s board of supervisors adopted a resolution directing the county treasurer to accept $11,000 from the Bar-retts as full redemption for the three parcels. The resolution also directed the treasurer to pay Robinson “all amounts due him under Chapters 446 and 447 and to thereafter issue a certificate of redemption in compliance with the resolution and section 447.5 of the Code of Iowa.” The county offered to pay Robinson $500 for each certificate plus interest from the time of the sale to the time of redemption upon his surrender of the certificates pursuant to section 447.4.

Robinson filed a petition for declaratory judgment that asked the district court to declare the county “wholly without right or justification to assert any rights under certificates of purchase in which it had absolutely no interest....” Robinson also asked the district court for “supplemental relief to remedy the unlawful actions taken by the defendant and to award him damages” including attorney fees and costs.

The county answered the petition and requested Robinson’s petition be dismissed. The county also claimed it was only required to pay Robinson “a ratable part of the interest and costs under a compromised certifícate in accordance with Iowa Code section 447.4.”

Both parties moved for summary judgment. Robinson claimed he was entitled to the relief requested in his petition as a matter of law. The county claimed it was “entitled to summary judgment even if all the facts alleged by the plaintiff in his petition were true.”

The district court denied Robinson’s motion for summary judgment and granted the county’s. The court found the county acted within its power to compromise the back taxes with the Barretts even after it assigned the tax certificates to Robinson. The court further determined that Robinson was entitled to receive only the amount paid and a ratable portion of the penalty, interest, and costs for his tax certificates under section 447.4. Therefore, the court dismissed Robinson’s petition with prejudice.

Robinson appeals.

II. Issues.

Robinson raises two dispositive issues. First, he claims the county had no right to compromise the taxes after it assigned the tax certificates. Second, he claims the amount the Barretts paid to the county did not constitute a valid redemption of the parcels.

III. Standard of Review.

Our review of an order granting summary judgment is for correction of errors at law. Green v. Racing Ass’n of Cent. Iowa, 713 N.W.2d 234, 238 (Iowa 2006). The district court correctly enters a summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981. On review, we examine the record before the district court and determine whether there was a material fact in dispute and if not, whether the district court correctly applied the law. Gen. Car & Truck Leasing Sys., Inc. v. Lane & Waterman, 557 N.W.2d 274, 276 (Iowa 1996).

IV.Analysis.

In 1989 when the tax sale occurred, the Code provided:

When property is offered at a tax sale under the provisions of section 446.18, and no bid is received, or if the bid received is less than the total amount of the delinquent general and special taxes, interest, penalties and costs, the county in which the real estate is located, through its board of supervisors, shall bid for the real estate a sum equal to the total amount of all delinquent general taxes, special assessments, interest, penalties and costs charged against real estate. No money shall be paid by the county or other tax-levying and tax-certifying body for the purchase, but each of the tax-levying and tax-certifying bodies having any interest in the general and special taxes for which the real estate is sold shall be charged with the full amount of all the delinquent general and special taxes due the levying and tax-certifying bodies, as its just share of the purchase price. This section does not prohibit a governmental agency or political subdivision from bidding at the sale for property to protect its interests.

Iowa Code § 446.19. Under this statute, the county became the default holder of the tax certificates to the three parcels owned by the Barretts because there were no bids. Id. The county is credited with purchasing the parcels for a sum equal to the total amount of the delinquent general and special taxes, interest, penalties and costs. Id.

In 2004 the county wanted to get the parcels back on the tax roll and recoup the back taxes. The county was also afraid it would be responsible for abating any nuisances on the parcels while it held the tax certificates. At that time, the legislature had codified various options that allowed a county to divest itself of a tax certificate.

One option available was to assign the certificate to a person other than the person entitled to redeem the parcel. Iowa Code § 446.31 (2003). Under the plain language of section 446.31 the county could have assigned “the certificated for the total amount due as of the date of assignment or compromise the total amount due and assign the certificate.” Id. Once the county made a valid assignment, the as-signee had to comply with the time limits established by the Code to avoid the cancellation of the sale. Id.

Another option given to the county was “to compromise by written agreement, or abate by resolution, the tax, interest, fees, or costs.” Iowa Code § 445.16. The plain language of section 445.16 allowed the county to compromise or abate if it “holds the tax sale certificate of purchase.”

In the present case the county divested itself of the tax certificates by proper assignment under section 446.31. After making the assignment the county attempted to compromise the back taxes under section 445.16. Because the county was not the holder of the certificates at the time it compromised the back taxes, it did not have the authority under section 445.16 to do so.

Robinson also argues section 447.4 does not apply to him because the $11,000 paid by the Barretts did not constitute a full redemption. Therefore, Robinson claims the district court should have granted his motion for summary judgment and awarded him more than the $500 he paid for each certificate, and more than a ratable portion of the penalty, interest, and costs allowed under section 447.4.

To determine if a valid redemption took place, we must examine the redemption statutes. The law in effect at the time of the tax sale applies to redemption. Iowa Code § 447.14. Therefore, we must look to the 1989 Iowa Code to determine if the Barretts redeemed the parcels when they paid the county $11,000.

Section 447.1 governs redemption. The 1989 Code provided in relevant part:

Real estate sold under this chapter and chapter 446 may be redeemed at any time before the right of redemption is cut off, by the payment to the treasurer, to be held by the treasurer subject to the order of the purchaser, of the amount for which the real estate was sold and four percent of the amount added as a penalty, with three-quarters percent interest per month on the sale price plus the penalty from the date of sale, and the amount of all taxes, interest, and costs paid by the purchaser or the purchaser’s assignee for any subsequent year, with a similar penalty added as before on the amount of the payment for each subsequent year, and three-quarters percent per month on the whole amount from the date of payment.

Iowa Code § 447.1 (1989) (emphasis added).

After the sale of a tax certificate, the purchaser of the certificate can pay the taxes due in the subsequent years. Id. § 446.32 (1989). The record does not indicate whom, if anyone, paid the taxes between the date of the tax sale and the date the county accepted the $11,000 from the Barretts. Robinson does not cite any authority stating the county should be credited with paying the taxes in the years after it became the default owner of the certificates. See Iowa Code § 446.19 (stating that a county becomes the default owner of a tax sale certificate if there are no bids, and the county is credited for paying the purchase price). Accordingly, this record does not indicate if the payment of $11,000 by the Barretts equaled the amount required to redeem the parcels under section 447.1 (1989). Therefore, we cannot say as a matter of law the Barretts redeemed the parcels within the terms of the statute.

V. Conclusion and Disposition.

The county was not authorized to compromise the back taxes under section 445.16 because it divested itself of the tax certificates prior to the compromise. Moreover, under this record we cannot determine whether the $11,000 paid by the Barretts to the county redeemed the parcels under section 447.1 (1989). Accordingly, we must reverse the judgment of the district court dismissing Robinson’s petition and remand the case for further proceedings consistent with this opinion.

REVERSED AND CASE REMANDED.

      . Iowa Code section 447.4 (1989) provides:
      In case a redemption is made of any real estate sold for a less sum than the taxes, penalty, interest, and costs, the purchaser shall receive only the amount paid and a ratable part of such penalty, interest, and costs. In determining the interest and penalties to be paid upon redemption from such sale, the sum due on any parcel sold shall be taken to be the full amount of taxes, interest, and costs due thereon at the time of such sale, and the amount paid for any such parcel at such sale shall be apportioned ratably among the several funds to which it belongs. Real estate so sold shall be redeemable in the same manner and with the same penalties as that sold for the taxes of the preceding year.

      . Unless otherwise indicated, all references to the Iowa Code from this point forward are to the 2003 Code of Iowa.


author: CADY, Justice.

text:
    CITY OF OKOBOJI, Plaintiff, v. IOWA DISTRICT COURT FOR DICKINSON COUNTY, Defendant.
    No. 06-1483.
    Supreme Court of Iowa.
    Jan. 25, 2008.

      Michael J. Chozen of Chozen & Saunders, Spirit Lake, for plaintiff.
    Mark McCormick of Belin Lamson McCormick Zumbach Flynn, P.C., Des Moines, and Phil C. Redenbaugh, Storm Lake, for defendant.
   CADY, Justice.

In this certiorari action, we conclude the district court acted illegally by entering an injunction following remand that failed to carry out the directives of our opinion in City of Okoboji v. Okoboji Barz, Inc., 717 N.W.2d 310 (Iowa 2006). We sustain the writ of certiorari and remand the case to the district court for the issuance of a permanent injunction, as previously directed.

I. Background Facts and Proceedings.

John P. Duffy, a district court judge in the Third Judicial District, entered a ruling in 2004 that denied a request by the City of Okoboji for declaratory and injunc-tive relief against Okoboji Barz, Inc. and Leo Parks, Jr. The City had asked the district court to declare a proposed addition of a bar or tavern to the existing operation of a marina on property owned by Parks and his corporation constituted an unlawful expansion of a nonconforming use and violated a special use permit.

The marina at the heart of the dispute is located on the shores of Smith Bay of West Lake Okoboji, and is situated on two adjacent parcels of lakefront property formerly operated as two separate marinas. Each parcel houses a separate building with easy access between them. One of the buildings was known as “The Cove,” and the other building was known as “Oko-boji Boats.” The businesses began operating as a single marina known as “Okoboji Boats” more than thirty years ago.

The property is presently zoned for residential use, and Parks operates the marina business as a preexisting, nonconforming use. The marina has sold beer and wine for many years to customers for off-premises consumption, as well as snacks and other beverages. The beer and wine was sold to customers pursuant to a license that permits Parks to sell alcoholic beverages for off-premises consumption. The marina has never been licensed to sell or serve alcoholic beverages for on-premises consumption.

In 2003, Parks proposed to operate a lakefront bar in conjunction with the operation of the marina. He wanted to provide alcoholic beverages for on-premises consumption by patrons and also offer patrons such activities as karaoke, live music, hog roasts, and monthly full-moon parties. The proposed bar would primarily cater to daytime patrons, but would also remain open until 10:30 p.m. or later. Parks claimed the addition of a bar was an essential component of the modern-day operation of a marina.

Parks sought, and was denied, a class C “commercial” liquor license, which would have permitted the on-premises sale and consumption of alcoholic beverages. This action led to the petition by the City for injunctive and declaratory relief. The district court denied the requested relief following a hearing. The evidence presented at the hearing detailed the past and proposed use of the marina. In particular, Parks described the proposed expansion of the marina as a bar.

The City appealed the district court ruling. On appeal, we determined the proposed use of the property by Parks as a bar would change the “nature and character of the nonconforming use” and would constitute “an unlawful expansion of a pri- or nonconforming use.” Okoboji Barz, Inc., 717 N.W.2d at 316. We held “the district court should have granted the city’s request for a permanent injunction enjoining Okoboji Barz, Inc., d/b/a/ Okoboji Boats, and Parks from operating the proposed bar on the premises.” Id. We remanded the case to the district court “to enter a permanent injunction consistent with this opinion.” Id.

Following remand, the City filed an application with the district court to issue a permanent injunction. It asked the district court to enjoin Parks and his corporation from using the marina in the manner “determined by the supreme court to ‘change the nature and character of a nonconforming use.’ ” In particular, the City asked that the injunction prohibit both the operation of the bar and the proposed activities of live music, karaoke, hog roasts, and full-moon parties.

In response, Parks claimed the underlying litigation was confined to whether the marina could operate under a class C liquor license and the injunction we directed to be entered on remand should only prohibit the operation of a bar involving the sale of alcoholic beverages with on-premises consumption as permitted by a class C liquor license. Parks claimed the original petition for injunctive relief brought by the City did not specifically request an injunction to prohibit the use of the marina for live music, karaoke, hog roasts, and full-moon parties, and the injunction ultimately issued could not cover these activities.

Judge Duffy issued an injunction. The injunction only enjoined Parks from using the marina to operate a bar “for sale of alcoholic beverages with on-premises consumption.” Consequently, the injunction did not prohibit Parks from using his property to provide live music, karaoke, hog roasts, and full-moon parties to patrons as he had proposed. Moreover, the specific language of the injunction only prohibited the sale of alcoholic beverages in the manner permitted by a class C license. As argued by the city, the injunction did not prohibit Parks from operating the marina as a bar by selling packaged beer and wine on one of the two parcels under the existing beer and wine permits and using the other parcel as an area for patrons to gather in a bar-like atmosphere to open and consume the packaged beer and wine. Similarly, the injunction arguably did not prohibit Parks from mooring an excursion pontoon to the dock of the marina and selling alcoholic beverages from a bar on the pontoon to patrons under a class D liquor license for excursion boats.

The City filed a petition for writ of certiorari with this court. It requested the district court order be annulled and a new procedendo be issued to direct the district court to enter a permanent injunction that prohibited Parks from using his property as a bar for the consumption of alcoholic beverages and from engaging in the activities associated with the proposed bar. We granted the petition and now consider the writ.

II. Standard of Review.

Our review of an original certio-rari action is for correction of errors at law. State Pub. Defender v. Iowa Dist. Ct., 633 N.W.2d 280, 282 (Iowa 2001). We examine the judgment and action of the tribunal below to determine if the tribunal exceeded its jurisdiction or acted illegally. Id. Generally, judgment on certiorari is limited to sustaining or annulling the proceedings. Whitlock v. Iowa Dist. Ct., 497 N.W.2d 891, 893 (Iowa 1993).

A mandate to the district court contained in a decision of this court becomes the law of the case on remand, and a district court that misconstrues or acts inconsistently with the mandate acts illegally by failing to apply the correct rule of law or exceeding its jurisdiction. See Kuhlmann v. Persinger, 261 Iowa 461, 468, 154 N.W.2d 860, 864 (1967). Thus, a writ of certiorari can be used to correct action by a district court on remand that is contrary to a mandate. See id. (recognizing other forms of relief when a district court misconstrues a mandate); see also In re Sanford Fork & Tool Co., 160 U.S. 247, 255-56, 16 S.Ct. 291, 293, 40 L.Ed. 414, 416 (1895) (explaining a trial court’s failure to implement a mandate can be remedied by a new appeal or writ of mandamus). If the district court action is annulled, the mandate remains to be carried out and we can remand the case for that purpose.

III. Discussion.

It is a fundamental rule of law that a trial court is required to honor and respect the rulings and mandates by appellate courts in a case. See Casey v. Planned Parenthood, 14 F.3d 848, 856 (3d Cir.1994). The rule is fundamental to the effective operation of our multitiered judicial system. See Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506, 1508 (11th Cir.1987). It accounts for our orderly system of justice, which in turn contributes in a substantial way to the overall stability of our society. Since its earliest days, the United States Supreme Court recognized that “an inferior court has no power or authority to deviate from the mandate issued by an appellate court.” Briggs v. Pennsylvania R.R. Co., 334 U.S. 304, 306, 68 S.Ct. 1039, 1040, 92 L.Ed. 1403, 1405 (1948). Similarly, we have repeatedly observed that a district court, on remand of a case for some special purpose, “is limited to do the special thing authorized by this court in its opinion, and nothing else.” Kuhlmann, 261 Iowa at 468, 154 N.W.2d at 864 (citing prior cases and authorities).

Conceptually, the mandate rule is a by-product of the distinct roles between trial and appellate courts. Generally, the primary role of an appellate court is to correct any error in the judgment of the district court, while the responsibility to award and carry out court judgments is normally reserved for the district court. Yet, an opinion issued by an appellate court in the exercise of its jurisdiction often requires further action to be performed to properly execute the judgment and decision. Thus, our judicial system is generally set up so the execution of an action needed to carry out the judgment of the appellate court is left to be done by the court in the best position to do so. Casey, 14 F.3d at 857 (reviewing the history of the mandate rule). The appellate court mandate directs a district court in its role to implement the appellate court mandate. In re Marriage of Davis, 608 N.W.2d 766, 769 (Iowa 2000). Consequently, the practice is very circumscribed. On remand, the jurisdiction of the case is returned to the district court for the purpose of doing the act authorized or directed by the appellate court in its opinion “and nothing else.” Id. If the district court proceeds contrary to the mandate, its decision is viewed as null and void. Id. Thus, the district court is only vested with jurisdiction on remand “to the extent conferred by the appellate court’s opinion and mandate.” 5 Am.Jur.2d Appellate Review § 784 (1995). In this way, the question whether the district court has properly followed the mandate cannot only involve the proper construction of the mandate by the district court, but also the jurisdiction of the district court to act. Id. The district court has “ ‘no power but to obey the judgment of the appellate court.’ ” Glenn v. Chambers, 244 Iowa 750, 754, 56 N.W.2d 892, 895 (1953) (quoting 3 Am.Jur. Appeal and Error § 1234 (1936)).

The first task of the district court, when presented with a mandate on remand, is to determine the precise action directed to be done by the appellate court. Often, as in this case, the appellate mandate will simply instruct the district court to proceed consistently with the appellate court decision. In such cases, the district court must not read the mandate in a vacuum, but must consider the full opinion of the appellate court and the circumstances the opinion embraces. Davis, 608 N.W.2d at 769. The rationale of the appellate court opinion must be examined to uncover the intent of the appellate court. The “letter and spirit” of the mandate must be observed and implemented. Bankers Trust Co. v. Bethlehem Steel Corp., 761 F.2d 943, 949 (3d Cir.1985). The critical objective of the district court is to proceed “in accordance with the mandate and the law of the case as established on appeal.” Id.

In this case, the district court failed to follow the guiding principles of law to discern our intent and follow our mandate. Contrary to these principles, the district court necessarily read the mandate in a vacuum and essentially ignored the holding in the opinion derived from the legal issue we faced on appeal, as well as the rationale we used to reverse the district court decision. Contrary to our law, the district court on remand chose to resurrect the original pleadings in the case and rely on a single factual pleading in the original petition filed by the City to limit its authority to issue the injunction. The authority of the district court to issue the injunction, however, came only from our opinion, and there was no justification to turn back to the pleadings as a source of authority to issue the injunction on remand. Nothing in our opinion suggested the approach taken by the district court or the limitation it imposed on its authority to issue the injunction.

The injunction issued by the district court fell well short of the letter and spirit of our opinion and essentially undermined the legal process relied upon by the City to seek enforcement of its ordinances. In our written opinion, we unmistakably declared that the proposed use of the marina as a bar would constitute an illegal expansion of a nonconforming use. The rationale we used was that the proposed bar would substantially change the use of the marina property. Our decision was based on the expanded activities associated with the proposed bar, not the particular manner or licensing scheme Parks sought to employ to ultimately convert the marina into a place for people to gather and consume alcoholic beverages in the midst of various leisure and party activities. Our discussion in the opinion concerning Parks’ efforts to obtain a license to sell alcoholic beverages for on-premises consumption in conjunction with the operation of the proposed bar was merely part of the historical background of the case. Our opinion contained no language that could reasonably be relied upon to imply the injunction prohibiting the operation of the proposed bar should be tied to the manner in which the alcoholic beverages would be sold and consumed on the premises, or that the bar would not constitute an illegal expansion of the use of the marina if it could be operated without a class C liquor license. Instead, the important circumstances driving the required injunction concerned the activities associated with the operation of the bar. The full opinion and the circumstances it embraced made it abundantly clear that the injunction must prohibit the activity of operating a bar under the circumstances proposed without regard to the manner alcoholic beverages would be sold or consumed.

We conclude the trial court failed to carry out its responsibility to implement the mandate pursuant to the letter and spirit of our opinion. This constituted legal error. Accordingly, we remand the case to the district court with directions to enter a permanent injunction consistent with our prior opinion.

IV. Conclusion.

We conclude the district court erred in failing to enter a permanent injunction as directed by our prior mandate. We sustain the writ and remand the case to the district court to enter a permanent injunction consistent with the mandate of our prior opinion without delay.

WRIT SUSTAINED.

      . Federal courts have recognized three narrow exceptions that would allow a district court to deviate from a mandate. See United States v. Matthews, 312 F.3d 652 (5th Cir.2002). These exceptions are: "(1) the evidence at a subsequent trial is substantially different; (2) there has been an intervening change of law by a controlling authority; and (3) the earlier decision is clearly erroneous and would work a manifest injustice.'’ Id. at 657.


author: HECHT, Justice.

text:
    In re the DETENTION OF Jason D. HENNINGS, Jason D. Hennings, Appellant.
    No. 05-1752.
    Supreme Court of Iowa.
    Feb. 1, 2008.

      Mark C. Smith, State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Cristen Douglass and Andrew Prosser, Assistant Attorneys General, and Douglas R. Hansen, Assistant County Attorney, for appellee State of Iowa.
   HECHT, Justice.

A jury found Jason Hennings is a “sexually violent predator” (SVP), as defined in Iowa Code section 229A.2(11) (2005), and the district court consequently committed him to the custody of the department of human services. On appeal, Hennings asserts the district court erred in denying his motion to strike the State’s jury demand and his motion for a directed verdict. We affirm.

I. Factual and Procedural Background.

On November 2, 1999, the State charged Jason Hennings, who was then nineteen years of age, with six counts of sexual abuse in the third degree, in violation of Iowa Code section 709.4(2)(5) (1999); three counts of indecent contact with a child, in violation of section 709.12(2); and one count of dissemination and exhibition of obscene material to minors, in violation of section 728.2. The charges stemmed from Hennings’s interactions in 1999 with various female teenagers who ranged in age from thirteen to sixteen years old. Hennings and the State reached a plea agreement calling for dismissal of all charges except one sexual abuse charge, to which Hennings pled guilty. The court sentenced Hennings to an indeterminate prison term not to exceed ten years in the custody of the director of the department of adult corrections.

On March 1, 2005, just days before Hen-nings’s scheduled release from prison, the State filed a petition alleging Hennings is an SVP. See Iowa Code § 229A.2(11) (2005) (defining SVP); id. § 229A.4(1) (authorizing the Attorney General’s filing of a petition alleging “a person presently confined” is an SVP when a prosecutor’s review committee has concluded the person meets the definition of an SVP). After a hearing, the district court found probable cause existed to believe Hennings is an SVP, ordered Hennings’s placement in a secure facility for evaluation, and set a date for trial. See id. § 229A.5(2), (5) (requiring a court to determine, after a hearing, “whether probable cause exists” that a respondent is an SVP, and in instances where probable cause exists, to direct the respondent’s transfer to a secure facility for evaluation).

The State filed a jury demand. Hen-nings filed a motion to strike the jury demand on the ground that section 229A.7(4) violates the Equal Protection and Due Process Clauses of the United States and Iowa Constitutions. The district court denied the motion to strike.

At the ensuing jury trial, in order to meet its burden of showing Hennings is an SVP, the State had to prove, in relevant part, that Hennings “suffers from a mental abnormality which makes [him] likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.” Id. § 229A.2(11); see also id. § 229A.2(5) (defining “mental abnormality” as “a congenital or acquired condition affecting the emotional or volitional capacity of a person and predisposing that person to commit sexually violent offenses to a degree which would constitute a menace to the health and safety of others”). To establish the existence of a mental abnormality making Hennings likely to engage in predatory acts if not confined, the State introduced the testimony of Dr. Harry Hoberman, who had interviewed Hen-nings and reviewed his medical, court, and other records. Dr. Hoberman testified Hennings suffers from pedophilia, paraphi-lia “not otherwise specified” (NOS), antisocial personality disorder, and either a mixed personality disorder or a personality disorder NOS. Dr. Hoberman also opined that these disorders impair Hennings’s impulse control and render him likely to commit future sex offenses if not confined.

At the close of the State’s case, Hen-nings moved for a directed verdict on the ground the State failed to prove he suffers from a mental abnormality rendering him likely to engage in predatory acts if not confined. The court overruled the motion.

Hennings then presented the videotaped deposition of Dr. Stephen Hart. Based on his review of Hennings’s records, Dr. Hart found the evidence inconclusive regarding whether Hennings has a “mental abnormality,” as defined in chapter 229A. He stated Hennings may suffer from a bipolar mood disorder with the potential to later develop into schizoaffective disorder. But according to Dr. Hart, even assuming Hennings currently suffers from either of these conditions, no evidence exists that they predispose him to commit sexually violent offenses. Dr. Hart disagreed with Dr. Hoberman’s diagnoses of paraphilia and pedophilia because no evidence demonstrates Hennings is attracted to “inappropriate sexual objects,” and Hennings committed sexual offenses during a period shorter than six months.

Dr. Robert Prentky, who had both interviewed Hennings and reviewed his mental health records, also testified. In Dr. Prentky’s opinion, Hennings suffers from a bipolar disorder or schizoaffective disorder, but these disorders are not mental abnormalities predisposing him to commit future acts of sexual violence. He testified Dr. Hoberman’s diagnoses of pedophilia and paraphilia are inapposite because Hen-nings’s aberrant behavior did not extend for six months or longer. Dr. Prentky also rejected a diagnosis of pedophilia because Hennings’s penile plethysmograph examination and other relevant tests evidenced Hennings exhibits no sexual interest in children. Dr. Prentky also disputed the pertinence of the personality disorder diagnosis offered by Dr. Hoberman given the lack of evidence Hennings has “a long history of conduct disorder” and “aggressive acting out behavior.” After Dr. Prentky’s testimony, Hennings renewed his motion for a directed verdict, which was again overruled. The jury returned a verdict finding Hennings is an SVP, and the court consequently committed Hen-nings to the custody of the department of human services.

Hennings has appealed. He asserts the district court erred in overruling his motion to strike the State’s jury demand because Iowa Code section 229A.7(4) violates the Due Process and Equal Protection Clauses of the United States and Iowa Constitutions. He further contends the district court erred in overruling his motion for directed verdict because the State failed to offer sufficient evidence that he has a mental abnormality rendering him likely to commit sexually violent offenses if not confined.

II. Standards of Review.

We review Hennings’s constitutional claims de novo. In re Det. of Williams, 628 N.W.2d 447, 451 (Iowa 2001). We review the district court’s ruling on a motion for directed verdict for correction of errors at law. Iowa R.App. P. 6.4; State v. Swanson, 668 N.W.2d 570, 574 (Iowa 2003).

III. Analysis.

A. Due Process Claim. The United States and Iowa Constitutions preclude deprivations of “life, liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1; Iowa Const, art. 1, § 9. We consider these state and federal constitutional provisions “equal in scope, import, and purpose.” Atwood v. Vilsack, 725 N.W.2d 641, 647 (Iowa 2006) (internal quotation marks and citation omitted). Although we seek to “harmoniz[e] our decisions with those of the Supreme Court when reasonably possible,” we “jealously guard our right and duty to differ in appropriate cases” presenting state constitutional claims. Id. (internal quotation marks and citation omitted).

Governmental action violates principles of substantive due process when it “shocks the conscience” or impinges upon rights “ ‘implicit in the concept of ordered liberty.’ ” Id. (quoting United States v. Salerno, 481 U.S. 739, 746, 107 S.Ct. 2095, 2101, 95 L.Ed.2d 697, 708 (1987)). We begin our assessment of Hennings’s substantive due process claim by identifying the right allegedly violated by government action. Id. (citing In re Det. of Cubbage, 671 N.W.2d 442, 446 (Iowa 2003)). Hen-nings asserts section 229A.7(4) deprives him of his fundamental right to a fair trial by granting the State the right to demand and obtain a jury trial over his objection.

Hennings’s interest in a fair trial is fundamental. Gentile v. State Bar of Nevada, 501 U.S. 1030, 1075, 111 S.Ct. 2720, 2745, 115 L.Ed.2d 888, 923 (1991) (“Few, if any, interests under the Constitution are more fundamental than the right to a fair trial by ‘impartial’ jurors.”); see also In re Det. of Morrow, 616 N.W.2d 544, 549 (Iowa 2000) (“Due process requires fundamental fairness in a judicial proceeding.” (internal quotation marks and citation omitted)). The right to a fair trial, however, does not guarantee a trial before the decisionmaker of the respondent’s choosing; it simply guarantees a trial before an impartial deci-sionmaker. Singer v. United States, 380 U.S. 24, 36, 85 S.Ct. 783, 790, 13 L.Ed.2d 630, 638 (1965). We are not convinced the issues in an SVP proceeding are of such an inherently prejudicial character that it would be impossible or unlikely to empanel an impartial jury. The evidence routinely offered in cases brought under chapter 229A tends to prove the respondent has been convicted or charged with a sexually violent offense and suffers from a mental abnormality that predisposes him to commit such repugnant acts in the future if not confined in a secure facility. Although such evidence could elicit in a fact-finder a strong negative reaction against the respondent, “jurors, when properly instructed and educated, have shown the ability to get past their initial emotional responses.” State ex rel. Nixon v. Askren, 27 S.W.3d 834, 840 (Mo.Ct.App.2000). Juries are often called upon in our courts to decide cases presenting profoundly disturbing evidence. If they were unable to find the facts in such cases with an appropriate mindset, the viability of the jury system would be seriously undermined and “the criminal justice system would not be able to impartially try those charged criminally with having committed horrible, shocking and abominable crimes.” Id. The venerable role of the jury in our civil justice system would likewise be substantially depreciated.

After carefully reviewing this case, we do not share Hennings’s complete lack of confidence in a jury’s ability to serve as an impartial fact-finder notwithstanding the highly charged and potentially prejudicial nature of the evidence presented in cases of this type. Hennings has not demonstrated that a jury trial in an SVP case is inherently more likely to be unfair than a trial to the court. See Lisa Kavanaugh, Note, Massachusetts’s Sexually Dangerous Persons Legislation: Can Juries Make a Bad Law Better?, 35 Harv. C.R.C.L. L.Rev. 509, 510 n. 9 (2000) (noting in the six years after adoption of Massachusetts’s SVP statute, a higher percentage of detainees were discharged from detention after jury trials than after bench trials).

Although “trial by jury has its weaknesses and potential for misuse,” Singer, 380 U.S. at 35, 85 S.Ct. at 790, 13 L.Ed.2d at 638, the institution is not without safeguards to advance the goal of fairness. Potential jurors are subjected to voir dire examination, and the parties are allowed challenges for cause and peremptory challenges. See Iowa R. Civ. P. 1.915(6)0’) (authorizing challenge of a juror for cause if it appears the juror “has formed ... an unqualified opinion on the merits of the controversy, or shows a state of mind which will prevent the juror from rendering a just verdict”); Iowa R. Civ. P. 1.915(7) (authorizing parties to peremptorily strike potential jurors). The district court may also impose, within its considerable discretion, reasonable limitations on the admission of evidence to ensure the jury finds facts based on the evidence rather than extraneous matters. If, despite these and other available procedural protections, the district court concludes an impartial jury cannot be empaneled in the locality of the trial, venue may be changed. See Iowa R. Civ. P. 1.801(3) (authorizing change of venue if a party cannot obtain a fair trial). Post-trial remedies, including a judgment notwithstanding the verdict and a new trial, are also available to assure respondents’ right to a fair trial. See Iowa R. Civ. P. 1. 1003, 1.1004. These time-honored procedural protections help ensure the empanelling of an impartial jury, and justify the Framers’ confidence in the jury as “the tribunal ... most likely to produce a fair result” in an adversarial system. Singer, 380 U.S. at 36, 85 S.Ct. at 790, 13 L.Ed.2d at 638. The same procedural safeguards and our own confidence in the jury system cause us to conclude the Due Process Clauses of the federal and state constitutions do not entitle Hennings to a bench trial in this case.

B. Equal Protection Claim. The United States and Iowa Constitutions guarantee equal protection under the law. U.S. Const, amend. XIV, § 1; Iowa Const, art. I, § 6. Although we have “generally applied the same analysis to federal and state equal protection claims, this court has not foreclosed the possibility that there may be situations where differences in the scope, import, or purpose of the two provisions warrant divergent analyses.” Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 5 (Iowa 2004). Hennings does not contend the analysis to be applied to his claim under the Iowa Constitution should be different than that applied under the federal Equal Protection Clause. Accordingly, although we maintain the right “to fashion our own test for examining claims brought under our state constitution,” we again choose to “delay any consideration of whether a different analysis is appropriate to a case in which this issue was thoroughly briefed and explored.” Id. at 6.

The Equal Protection Clauses of the United States and Iowa Constitutions require equal treatment of similarly situated people. Id. (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313, 320 (1985)). Dissimilar treatment of people who are situated differently does not violate equal protection. Id. (citing Bruns v. State, 503 N.W.2d 607, 610 (Iowa 1993); Hack v. Auger, 228 N.W.2d 42, 43 (Iowa 1975)). A law is constitutional so long as members of the same class are treated the same. Id. (citing Hack, 228 N.W.2d at 43).

We begin our analysis of an equal protection claim by determining the rights implicated by the challenged classification and the appropriate standard of constitutional review. See Williams, 628 N.W.2d at 452. If the two groups are not similarly situated, we need not scrutinize the legislature’s differing treatment of them. Id. We apply a rational basis test if the groups are similarly situated but no suspect class or fundamental right is involved. Id.

Hennings contends “persons facing loss of liberty,” including SVP respondents and defendants in criminal cases, are similarly situated. He contends these persons are all similarly situated because their liberty is at risk in judicial proceedings, and they must therefore be treated similarly with respect to their right to choose a bench trial. We disagree that these individuals are similarly situated.

Respondents in SVP proceedings are generally different from defendants in criminal cases insofar as respondents in SVP proceedings allegedly have (1) in the past been convicted of or charged with committing a sexually violent offense, and (2) a mental abnormality making it likely they will commit sexually violent predatory acts if not confined and treated. The legislative findings articulated in section 229A.1 clearly express the conclusion that SVPs, because of their mental abnormality and concomitant inability to control their predatory acts of sexual violence, pose a greater risk of recidivism than criminal defendants generally. The legislature could reasonably conclude that this heightened risk of recidivism by SVPs and the danger to the public resulting from that risk gives the State a correspondingly greater interest in the outcome of SVP cases than it has in some criminal cases.

While in some criminal cases, there may be a great deal at stake for both society and the accused, in many other criminal cases it is the accused who has by far the greatest stake in the outcome. The nature of all SVPA cases, however, is such that, by definition, both society and the alleged predator have a significant stake in the outcome. [Kansas v.]Hendricks, 521 U.S. [346], 360, 117 S.Ct. 2072, [2081], 138 L.Ed.2d 501, 514 [(1997)].

Askren, 27 S.W.3d at 841 (emphasis in original). The State’s heightened stake in the outcome of SVP cases distinguishes them from criminal cases, and in our view, provides a minimally sufficient foundation for our conclusion that the parties to SVP cases are not similarly situated to the parties in criminal cases. The classification therefore does not violate equal protection.

C. Sufficiency of the Evidence. Our review of rulings on motions for directed verdict is for correction of errors at law. Iowa R.App. P. 6.4. We view the evidence in the light most favorable to the party opposing the motion. Iowa R.App. P. 6.14(6)(6); Reuter v. State Farm Mut. Auto. Ins. Co., 469 N.W.2d 250, 251 (Iowa 1991). We review the district court’s ruling to determine whether the State presented substantial evidence on each element of the claim. Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 391 (Iowa 2001). Evidence is substantial if a jury could reasonably infer a fact from the evidence. Balmer v. Hawkeye Steel, 604 N.W.2d 639, 640 (Iowa 2000).

Dr. Hoberman testified Hennings suffers from a mental abnormality rendering him likely to commit predatory acts constituting sexually violent offenses if not confined. The jurors’ finding that Hennings is an SVP suggests the jury chose to believe Dr. Hoberman rather than the defense’s expert witnesses, who testified to the contrary. The jury was free to reject the testimony of Hennings’s expert witnesses and to instead accept the testimony of Dr. Hoberman. See Eickelberg v. Deere & Co., 276 N.W.2d 442, 447 (Iowa 1979) (“The trier of fact is not bound to accept expert testimony, even if uncontradict-ed... .”). Hennings’s motion for directed verdict was clearly without merit.

IV. Conclusion.

We conclude Iowa Code section 229A.7(4) does not violate the Due Process and Equal Protection Clauses of the United States and Iowa Constitutions. The district court did not err in denying Hen-nings’s motion for a directed verdict.

AFFIRMED.

      . Section 229A.7(4) provides, in relevant part: The respondent, the attorney general, or the judge shall have the right to demand that the trial be before a jury. Such demand for the trial to be before a jury shall be filed, in writing, at least ten days prior to trial. If no demand is made, the trial shall be before the court.

      . It appears Hennings’s argument that a jury trial in an SVP case would violate due process is rather novel, as individuals facing civil commitment have argued for over a century that requiring a bench trial in civil commitment or "sexual psychopath” cases violates due process. See, e.g., Chavannes v. Priestly, 80 Iowa 316, 320, 45 N.W. 766, 768 (1890) (holding that insanity judgment and committal without providing notice or a jury trial does not violate due process); In re Dowdell, 169 Mass. 387, 47 N.E. 1033, 1034 (1897) (holding due process does not require trial by jury in civil commitment cases); State ex rel. Pearson v. Probate Court of Ramsey County, 205 Minn. 545, 287 N.W. 297, 303 (1939) (denial of jury trial in sexual psychopath proceeding did not violate due process), aff'd, 309 U.S. 270, 60 S.Ct. 523, 84 L.Ed. 744 (1940); C. Peter Erlinder, Of Rights Lost and Rights Found: The Coming Restoration of the Right to a Jury Trial in Minnesota Civil Commitment Cases, 29 Wm. Mitchell L.Rev. 1269, 1269 n. 3 (2003) (arguing the right to a jury trial in civil commitment proceedings should be protected as a due process right).

      . Hennings does not expressly contend the class of "persons facing loss of liberty” includes respondents in involuntary civil commitment proceedings under chapter 229, and his equal protection argument focuses entirely on the distinction between the respective rights of criminal defendants and SVP respondents to choose whether to have a bench or jury trial. We therefore do not address the issue of whether civil commitment respondents and SVP respondents are similarly situated or if there is a rational basis for treating them differently with respect to their right to determine the mode of trial.

      . Hennings notes that SVP respondents are the only persons in the class who are denied the opportunity to unilaterally choose the mode of trial. Compare Iowa Code § 229A.7(4) (granting the State and the judge the right to demand a jury trial in SVP cases), with Iowa R.Crim. P. 2.17 (allowing defendants in criminal cases the right to waive a jury trial and choose a bench trial).


text:
    STATE of Iowa, Appellee, v. Brent Eric JOHNSON, Appellant.
    No. 06-0880.
    Supreme Court of Iowa.
    Feb. 8, 2008.

      Timothy McCarthy II of McCarthy & Hamrock, P.C., West Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, John P. Sarcone, County Attorney, and James P. Ward, Assistant County Attorney, for appellee.
   LARSON, Justice.

Brent Johnson was convicted of serious injury by vehicle (Iowa Code section 707.6A(4) (2005)), operating while intoxicated, third offense (Iowa Code section 321J.2(2)(c)), failing to stop following a personal injury accident (Iowa Code section 321.261(2)), and leaving the scene of a personal injury accident (Iowa Code section 321.263). On appeal, Johnson raises a single issue — the admission of test results from his blood sample obtained without a warrant, pursuant to Iowa Code section 321J.10A. We affirm.

I. Facts and Prior Proceedings.

The district court, in a jury-waived trial based on the minutes of evidence and the transcript of the suppression hearing, found the following facts. On January 27, 2006, at 4:41 p.m., Johnson caused an automobile accident resulting in the serious injury of Refic Abdik. After the accident, Johnson left the scene on foot, but police officers later located him several blocks away. Johnson failed field sobriety tests, was arrested, and was transported to the Des Moines Police Department. There, at 6:25 p.m., he refused to provide a breath sample. Johnson was transported to Mercy Hospital, and at 7:20 p.m., a blood sample was taken — without his consent and without a warrant. Analysis of the blood sample showed that Johnson’s blood-alcohol concentration was .250%, well over the legal limit. Johnson moved to suppress the results of the test, complaining the “emergency” required by section 321J.10A(1) for obtaining a blood sample ■without a warrant was not established. The district court denied the motion, concluding an emergency situation existed sufficient to justify the warrantless seizure of Johnson’s blood.

II. Discussion.

Iowa Code section 321J.6, our implied-consent statute, authorizes law enforcement officers to obtain a sample of a driver’s blood, breath, or urine for purposes of chemical testing for intoxication when there are reasonable grounds to believe the driver is intoxicated. On a refusal to submit to such testing, the driver’s license may be revoked. Iowa Code § 321J.9. However, withdrawal of a specimen of blood, breath, or urine for chemical testing is permitted over the individual’s objection pursuant to a search warrant when a traffic accident has resulted in death or injury reasonably likely to cause death, and there are reasonable grounds to believe that at least one of the drivers at fault for the accident was intoxicated. Iowa Code § 321J.10A. In 2004, the legislature enacted section 321J.10A(1), which permits the withdrawal of blood without a warrant under certain circumstances. Section 321J.10A(1) provides:

Notwithstanding section 321J.10 [requiring a warrant to obtain a blood sample in the absence of consent], if a person is under arrest for an offense arising out of acts alleged to have been committed while the person was operating a motor vehicle in violation of section 321J.2 or 321J.2A, and that arrest results from an accident that causes a death or personal injury reasonably likely to cause death, a chemical test of blood may be administered without the consent of the person arrested to determine the amount of alcohol or a controlled substance in that person’s blood if all of the following circumstances exist:
a. The peace officer reasonably believes the blood drawn will produce evidence of intoxication.
b. The method used to take the blood sample is reasonable and performed in a reasonable manner by medical personnel under section 321J.11.
c. The peace officer reasonably believes the officer is confronted with an emergency situation in which the delay necessary to obtain a warrant under section 321J.10 threatens the destruction of the evidence.

In this case, it is undisputed that the accident caused an injury reasonably likely to cause death (medical evidence showed that the victim would likely die), and the method used to take the blood sample (by medical personnel) was reasonable. Thus, requirements (a) and (b) of section 321J.10A(1) were satisfied, and the defendant does not contend otherwise. The only issue is whether the requirement of subsection (c) has been satisfied, i.e., whether the peace officer reasonably believed he was confronted with an emergency situation in which the delay necessary to obtain a warrant threatened the destruction of evidence. This case presents an issue of first impression in the application of Iowa Code section 321J.10A(1).

A. The Exigency Argument. The issue raised in this case was addressed by the United States Supreme Court in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). In Schmerber the Court concluded that the warrantless withdrawal of blood from an individual implicates the Fourth Amendment to the United States Constitution. It said, “[t]he overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State,” and the extraction of blood “plainly constitute^ a search] of ‘persons’ and depend[s] antecedently upon seizures of ‘persons,’ within the meaning of that Amendment.” Schmerber, 384 U.S. at 767, 86 S.Ct. at 1834, 16 L.Ed.2d at 918. Despite Fourth Amendment implications, the Court recognized that alcohol naturally dissipates from the body shortly after its consumption and concluded the warrant-less seizure of blood for purposes of chemical testing may be justified by the exigent-circumstances exception to the warrant requirement of the Fourth Amendment. The Court stated that the police officer in Schmerber “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.’ ” Id. at 770, 86 S.Ct. at 1835, 16 L.Ed.2d at 919-20 (quoting Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777, 780 (1964)). The wording of the Iowa statute tracks closely with the language of Schmerber.

Iowa case law has followed the rationale set forth in Schmerber — that the natural dissipation of alcohol from the bloodstream may be an exigent circumstance making it constitutionally permissible to obtain a blood sample without a search warrant. See State v. Legg, 633 N.W.2d 763, 772 (Iowa 2001) (holding that “there was a real possibility that any delay to obtain a warrant would result in the destruction of evidence.... Even if Legg would not have purposely tried to destroy evidence of her blood-alcohol level, this evidence would have naturally dissipated during any delay.”); State v. Findlay, 259 Iowa 733, 743, 145 N.W.2d 650, 656 (1966) (holding that the delay required to obtain a search warrant would result in the destruction of evidence of an alcohol-related offense).

The State here bases its argument for admission of the blood-test evidence on the exigency rationale of Schmerber and Iowa Code section 321J.10A(1). The exigency, of course, is the natural tendency of alcohol to dissipate from a person’s system. Johnson, on the other hand, contends the warrantless withdrawal of his blood did not comport with section 321J.10A and was unreasonable for Fourth Amendment purposes for two reasons: (1) the officer could have reduced the exigency by applying for a warrant by telephone under Iowa Code section 321J.10, and (2) there was no real exigency because a later sample could be used to determine the alcohol concentration at an earlier time through the process of extrapolation.

The impact of Schmerber and statutes such as our Iowa Code section 321J.10A(1), allowing extraction of blood without a warrant, have been discussed by cases from other jurisdictions with mixed conclusions. The Wisconsin Supreme Court has observed that

Schmerber can be read in either of two ways: (a) that the rapid dissipation of alcohol in the bloodstream alone constitutes a sufficient exigency for a war-rantless blood draw to obtain evidence of intoxication following a lawful arrest for a drunk driving related violation or crime — as opposed to taking a blood sample for other reasons, such as to determine blood type; or (b) that the rapid dissipation of alcohol in the bloodstream, coupled with an accident, hospitalization, and the lapse of two hours until arrest, constitute exigent circumstances for such a blood draw.

State v. Bohling, 178 Wis.2d 529, 494 N.W.2d 399, 402 (1993) (emphasis added). A majority of the Wisconsin court adopted the first rationale — that the rapid dissipation of alcohol alone constitutes a sufficient exigency to withdraw blood without a warrant. Id. The court discussed several cases and other authorities, which, it observed, had a similar view. Id. at 403-05.

According to the dissent in Bohling, the majority “makes seizure of a blood sample without a warrant reasonable per se under the Fourth Amendment.” 494 N.W.2d at 406 (Abrahamson, J., dissenting). Other courts have rejected Bohling’s application of Schmerber. The Utah Supreme Court, for example, stated that:

Contrary to the assertion of the State, Schmerber does not stand for the proposition that the loss of evidence of a person’s blood-alcohol level through the dissipation of alcohol from the body was a sufficient exigency to justify a war-rantless blood draw. Rather, these three categories of “special facts” combined to create the exigency. The evanescence of blood-alcohol was never special enough to create an exigent circumstance by itself.

State v. Rodriguez, 156 P.3d 771, 776 (Utah 2007). We agree with this interpretation of Schmerber. In fact, the Court in Schmerber seemed to reject the notion of per se exigency in such cases. It said:

We ... conclude that the present record shows no violation of petitioner’s right under the Fourth and Fourteenth Amendments to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.

Schmerber, 384 U.S. at 772, 86 S.Ct. at 1836, 16 L.Ed.2d at 920 (emphasis added). The “present record” referred to in Schmerber showed that time had to be taken by the arresting officer to investigate the scene of the accident, to attend to injuries, and process the defendant. Id. at 770-71, 86 S.Ct. at 1835-36, 16 L.Ed.2d at 919-20. So, there was more underlying the seizure of blood in Schmerber than the mere phenomenon of alcohol dissipation.

Time-based considerations similar to those in Schmerber are present in Johnson’s ease. The accident occurred at approximately 4:41 p.m. Johnson left the scene. Police officers arrived, dealt with the victim’s injuries, interviewed witnesses, and went looking for Johnson. They found Johnson several blocks away. A traffic officer specializing in OWI enforcement and fatality investigations was called. Johnson attempted, but failed, field sobriety tests. He was then transported to the traffic office to obtain a breath sample (which he refused), and he was ultimately transported to the hospital. There, at 7:20 p.m., his blood was drawn.

In all, more than two and a half hours passed between the time of the accident and the time Johnson’s blood was drawn. During this time, his blood-alcohol concentration was continually diminishing due to the natural dissipation of alcohol. The traffic officer testified that he believed evidence of Johnson’s blood-alcohol concentration would be destroyed if he waited to draw blood until after a search warrant was obtained. We conclude that the officers complied with section 321J.10A, which requires only a reasonable belief that the delay necessary to obtain a warrant would threaten the destruction of the evidence.

B. The Telephone Warrant Argument. Johnson argues that Iowa Code section 321J.10, which allows an officer to obtain a telephonic search warrant, would have speeded up the warrant process and thereby reduced the effect of dissipation of alcohol from his blood. That section provides:

Notwithstanding section 808.3 [requiring written applications], the issuance of a search warrant under this section may be based upon sworn oral testimony communicated by telephone if the magistrate who is asked to issue the warrant is satisfied that the circumstances make it reasonable to dispense with a written affidavit. The following shall then ap-piyU

Iowa Code § 321J.10(3). While a telephone warrant might be obtained more quickly than a traditional warrant, we do not think it would have significantly reduced the exigency in this case. Obtaining a warrant by telephone is fairly complicated; an officer cannot simply call up a magistrate and make a general request for a warrant. The officer must prepare a “duplicate” warrant and read the duplicate warrant, verbatim, to the magistrate. The magistrate then must enter, verbatim, what has been read to him on a form to be considered as the original warrant. Iowa Code § 321J.10(3)(&). The oral application must set forth facts and information tending to establish the grounds for the issuance of the warrant and describe with reasonable specificity the person or persons whose driving has been involved and from whom the specimen is to be withdrawn. Id. § 321J.10(3)(c). Gathering of this information, of course, requires considerable time. If a voice recording device is available to the magistrate, the magistrate may record the call, but otherwise “shall cause a stenographic or longhand memorandum to be made of the oral testimony of the person applying for the warrant.” Id. § 321J.10(3)(d). If the magistrate is satisfied that the grounds for the issuance of the warrant have been established, the magistrate shall order the issuance of the warrant by directing the officer applying for it to sign the magistrate’s name to the “duplicate” warrant. Id. § 321J.10(3)(e).

Despite the availability of a telephone warrant, we believe the facts of this case still show the exigency required by Schmerber and section 321J.10A. Considerable time had elapsed following the accident before the need for any warrant— traditional or telephonic — became apparent. Perhaps more importantly, we believe that Iowa Code section 321J.10A eliminates the requirement for any warrant, telephonic or traditional, if the specified conditions are met.

The Fourth Circuit addressed the effect of telephone warrants under a federal rule almost identical to Iowa Code section 321J.10. The court stated:

[The defendants] argue that the police should have gotten a warrant via the telephone as allowed by Fed.R.Crim.P. 41(c)(2). Because of this procedure, they assert that no exigency existed. At first blush, this argument is convincing. However, analysis of the intricate requirements of Rule 41(c)(2) shows that the existence of the rule does not alter the exigency of the situation.
Rule 41(c)(2)(B) requires that the police prepare a document known as “a duplicate original warrant” before calling the magistrate judge. Rule 41(c)(2)(B) also requires that the police must read the document verbatim to the magistrate judge. The magistrate judge must enter verbatim what is read to him onto a document known as the original warrant. Rule 41(c)(2)(D) requires the magistrate judge to place under oath the police officer requesting the warrant and anyone whose testimony forms a basis of the application. Further, Rule 41(c)(2)(D) requires the magistrate judge to record the conversation if a voice recording device is available; otherwise, the magistrate judge must arrange for a stenographic or longhand verbatim record to be made. Obviously, compliance with these rules takes time. Time is what is lacking in these circumstances [due to the natural dissipation of alcohol.]

United States v. Reid, 929 F.2d 990, 993 (4th Cir.1991). The court concluded that the availability of a warrant by telephone did not vitiate the exigency upon which the seizure of the sample was justified. We agree in this case.

C. The Extrapolation Argument.

Johnson argues that any exigency underlying the need for a prompt blood test is diminished by the fact that his blood-alcohol level at the time of the offense could be determined by extrapolation — analyzing a later specimen by applying standardized criteria to determine blood alcohol at an earlier time. It is clear, however, that this is far from an exact science. The defendant’s own expert testified that the accuracy of this method is subject to variables such as the type of drink consumed and the contents of the person’s stomach. The State’s expert was even more guarded in his assessment of this process, testifying that extrapolation is “just an approximation. It’s just an estimation.”

The court in People v. Thompson, 38 Cal.4th 811, 43 Cal.Rptr.3d 750, 135 P.3d 3 (2006), stated:

We are ... unpersuaded by defendant’s claim that any exigency is eliminated because of the possibility an expert could testify about the defendant’s blood-alcohol level at an earlier point “by extrapolating backward from the later-taken results.” As courts have recognized, “such extrapolations can be speculative.”

Thompson, 43 Cal.Rptr.3d 750, 135 P.3d at 12 (quoting Bohling, 494 N.W.2d at 405). The court in Thompson identified some of the factors that may affect the extrapolated result, including weight of the person, the timing and content of the last meal, and physical exertion. Id.

We conclude that the possibility of an extrapolated blood-alcohol percentage did not remove the exigency in this case. Section 321J.10A(1) contemplates accurate blood-test results obtained from samples that are reásonably contemporaneous with the event in question — not obtaining blood-alcohol results through the process of extrapolation, which is concededly less accurate.

We find no error in the trial court’s conclusions and therefore affirm.

AFFIRMED.

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

      . The destruction of evidence in alcohol-related offenses is unique. This court has recognized two ways by which evidence of alcohol-related offenses can be destroyed. “First, a suspect could ingest more alcohol, skewing the alcohol content higher and corrupting any evidence of prior consumption. Second, the blood alcohol level naturally dissipates during a delay.” State v. Lovig, 675 N.W.2d 557, 566 (Iowa 2004) (citation omitted) (footnote omitted). It is the latter that is of concern in the present case. Alcohol is absorbed into the blood shortly after it is ingested. E. John Wherry, Jr., Vampire or Dinosaur: A Time to Revisit Schmerber v. California?, 19 Am. J. Trial Advoc. 503, 515 (1996). Once all of the alcohol has been absorbed from the stomach and the small intestine into the bloodstream, the level of alcohol in the blood is at a maximum. Id. Thereafter, the alcohol concentration in the blood slowly decreases as the alcohol dissipates from the human body. Id. In general, alcohol dissipates from an average person’s body at a rate of .015% to .020% per hour. Id. at 516. The alcohol will continue to dissipate until it is completely eliminated from the body. Id. at 515.