author: LARSON, Justice.

text:
    Lester CAMPBELL, Appellant, v. Arnold DELBRIDGE and Covenant Medical Center, Inc., Appellees.
    No. 02-1007.
    Supreme Court of Iowa.
    Oct. 8, 2003.

      Douglas V. Coonrad, Hudson, for appellant.
    Joseph L. Fitzgibbons and Ned A. Stockdale of Fitzgibbons Law Firm, Esth-erville, for appellee Covenant Medical Center, Inc.
    Allison M. Heffern and James E. Ship-man of Simmons Perrine Albright & Ell-wood, PLC, Cedar Rapids, for appellee Arnold Delbridge.
    Frank Santiago, Iowa City, and Donald T. Ridley, Watchtower Bible and Tract Society of New York, Inc., Patterson, NY, for amicus curiae Christian Congregation of Jehovah’s Witnesses.
   LARSON, Justice.

Lester Campbell, a surgical patient at Waterloo’s Covenant Hospital, sued the hospital and Dr. Arnold Delbridge, Campbell’s treating doctor, for reinfusing Campbell’s own blood following surgery. The district court dismissed the suit, and Campbell appealed. We reverse and remand.

I. Facts and Prior Proceedings.

Lester Campbell was admitted to Covenant for a total right knee arthroplasty performed by Dr. Delbridge, an orthopedic surgeon. Campbell is a Jehovah’s Witness, and he made it clear in his pre-surgical physical and at his preadmission appointment that his religious beliefs precluded the use of blood or blood products, including his own. His medical chart made numerous references to his refusal to accept blood infusions. Campbell did not receive any blood or blood products during surgery. However, after surgery, Dr. Delbridge ordered the use of a Gish Orthoinfuser (Gish) to collect blood from the surgical site. The doctor decided to use the Gish, as opposed to other devices, because the Gish provided a reservoir where blood can be stored for disposal or possible reinfusion, and it provided the best suction. Further, use of the Gish would preserve Campbell’s ability to change his mind about receiving his own blood should it become medically necessary.

The nurse anesthetist who took Campbell to the postanesthesia care unit (PACU) stated in an affidavit that, at the request of Dr. Delbridge, she told the PACU nurses that Campbell was a Jehovah’s Witness and was not to be reinfused. The PACU nurses, however, denied receiving this information. The nurse who started the reinfusion admitted in her deposition that she did not look at Campbell’s chart for an order to start the reinfusion, as usually required. She based her decision to reinfuse on the fact that the Gish, with its blood reservoir, suggested that reinfusion was to be done. Campbell was reinfused with his own blood for just under an hour.

Campbell sued the doctor and the hospital, alleging negligence, failure to obtain informed consent, breach of contract, medical battery, and invasion of privacy. Campbell had originally indicated he would have an expert witness on the doctor’s standard of care, but that witness was withdrawn. Dr. Delbridge moved for summary judgment on the ground that, without expert testimony, Campbell could not make a prima facie showing on any of his theories of recovery. Covenant filed a motion to preclude the plaintiffs medical evidence under Iowa Rule of Civil Procedure

1.508(3) (failure to identify expert) and Iowa Rule of Evidence 5.104(a) (preliminary question of qualification of witnesses to be determined by court).

The court concluded that the plaintiff lacked the necessary expert witnesses to establish liability or damages, and the suit was dismissed.

II. Standard of Review.

The standard of review of a district court’s grant of summary judgment is for correction of errors at law. Kelly v. Iowa Mut. Ins. Co., 620 N.W.2d 637, 641 (Iowa 2001). Summary judgment is appropriate only when the moving party shows there are no genuine issues of material fact, and in deciding that issue, we review the record in the light most favorable to the party opposing the motion. Id. Another principle is applicable here:

Because resolution of issues of negligence and proximate cause turns on the reasonableness of the acts and conduct of the parties under all the facts and circumstances, actions for malpractice “are ordinarily not susceptible of summary adjudication.”

Oswald v. LeGrand, 453 N.W.2d 634, 635 (Iowa 1990) (quoting Daboll v. Hoden, 222 N.W.2d 727, 732 (Iowa 1974)).

III. The Issues.

The defendants rely on the principle that, ordinarily, expert testimony is required to establish the applicable standard of care and a breach of it. See Oswald, 453 N.W.2d at 635 (to establish prima facie case of medical malpractice, the plaintiff must produce evidence establishing a standard of care, a violation of the standard, and a causal relationship with the injury). The establishment of these criteria must “[o]rdinarily be made through an expert witness.” Id.; see also Iowa Code § 668.11 (2001):

1. A party in a professional liability case brought against a licensed professional pursuant to this chapter who intends to call an expert witness of their own selection, shall certify to the court and all other parties the expert’s name, qualifications and the purpose for calling the expert ... within one hundred eighty days of the defendant’s answer unless the court for good cause not ex parte extends the time of disclosure.
2. If a party fails to disclose an expert pursuant to subsection 1 or does not make the expert available for discovery, the expert shall be prohibited from testifying in the action unless leave for the expert’s testimony is given by the court for good cause shown.

However, if an issue in a malpractice case may be determined by lay fact finders without the testimony of experts, we have allowed the fact finder to resolve it without expert testimony. For example, in Oswald we ruled that expert testimony was not required as to all of the elements of a medical malpractice case. In that case, the parents of a spontaneously aborted fetus sued the treating doctors and hospital. Susan Oswald, who was pregnant, experienced severe bleeding and cramping well ahead of her expected delivery date. Dr. Clark, one of the defendants, examined her and advised her there was nothing to be done and sent her home. The patient’s husband became upset and demanded that his wife be admitted to the hospital. She was admitted, but her ensuing lack of care at the hospital resulted in this lawsuit. A nurse told her if the fetus miscarried it would not be a baby, only a “big blob of blood.” One of her treating doctors said, within her hearing, that he did not want to treat her. At one point, the mother screamed in pain and yelled that she was in labor. The doctor did not do a pelvic exam. He suspected, but did not inform the parents, that the mother had a uterine infection. The doctor told the father to calm down his wife, and approximately one-half hour before the doctor’s shift ended, he left for vacation. The baby soon began to be born, without medical attention, until the father kicked on a door and got the attention of the medical staff. A one-pound baby girl was delivered, but a nurse announced she was stillborn. One of the doctors examined her for gender but made no further examination. The father called family members to tell them of their loss and, on returning to the room, discovered the baby grasped his finger. The baby, who had been kept on a surgical tray for half an hour, was rushed to a neonatal unit but died twelve hours later. Oswald, 458 N.W.2d at 636-37.

In Oswald the parents sued the medical care personnel and the hospital, but the district court granted summary judgment for the defendants. On appeal we held that some of the plaintiffs’ claims, such as whether better care would have saved the baby’s life, required expert testimony. The same was true on the question of whether the defendants’ callous treatment of the mother added to her medical stress. Id. at 638. We held, however, that to establish emotional distress under these facts

[n]o expert testimony is needed to elaborate on whether the statements by the nurses and Dr. Clark were rude and uncaring; a lay fact finder could easily evaluate the statements in light of the surrounding circumstances to determine whether the language used or message conveyed breached the standard of care expected of medical professionals, and determine the harm, if any, resulting to the plaintiffs....
We are similarly convinced that a lay jury is also capable of evaluating the professional propriety of Dr. Clark’s early departure from the hospital, knowing that he had left Susan Oswald unattended in a hospital corridor screaming hysterically that she was about to give birth.

Id. at 639-40.

Oswald relied on a similar New Jersey case, Friel v. Vineland Obstetrical & Gynecological Professional Association, 166 N.J.Super. 579, 584, 400 A.2d 147, 149 (Law Div.1979), which held a doctor’s “utter lack of attendance” at critical stages of the delivery “would appear to be within the province of the jury....”

Oswald bore a similarity to the present case also in that it relied in part on admissions of the defendant doctors to establish a breach of the duty of care. Oswald, 453 N.W.2d at 640. Here, Dr. Delbridge testified in his deposition that somebody made an error:

. Q. Do you agree that absent an error on somebody’s part, Mr. Campbell should not have been reinfused? A. Mr. Campbell’s desires were not to be rein-fused; that was my intention, and there was an error.

(Emphasis added.)

While Dr. Delbridge concedes the plaintiff should not have been reinfused, he contends he did all he could do to convey the message to the PACU nurses not to do it. He contends he did not order a reinfusion and points to the patient’s chart with its “no infusion” notations to defend the claims against him. The nurses, on the other hand, contend they did not get the message about not reinfusing the patient and that this was due in part to the fact that Dr. Delbridge had taken the chart, with its no-infusion notations, with him to write in it. There was even evidence that there might have been a mix-up between Campbell’s chart and that of another patient. The nurses also point to the fact that the doctor had ordered the use of a Gish, and this in itself suggests the doctor was ordering reinfusion. The nurses testified that, in the past, they had always reinfused patients when the doctor ordered a Gish to be used.

Whether reinfusion was called for, from a medical perspective, or whether the infusion was properly done would obviously require testimony by a medical expert. However, as in Oswald, we believe a lay fact finder is qualified and capable to resolve issues that are only peripheral to the medical decisions. In Oswald, for example, we said a fact finder could evaluate the propriety of a doctor’s leaving his patient early to go on vacation. 453 N.W.2d at 640. Here, Dr. Delbridge contends he did all he could to convey his order not to infuse the patient. The hospital, through its nurses, contends no order was provided to them and further that Dr. Delbridge created an aura of confusion by ordering use of the Gish. These are issues of credibility and communication. These are not complex issues. As we have said:

It is the complexity of professional negligence cases that requires expert testimony. [The defendant] argues that stray-voltage cases are technical in nature and thus require such testimony. Although testimony of witnesses having specialized education and training, or special experience and knowledge, is often admitted into evidence on the ground of necessity, it is not necessarily required merely because a case involves matters of science, special skill, special learning, knowledge, or experience which may be difficult for jurors to comprehend.

Schlader v. Interstate Power Co., 591 N.W.2d 10, 14 (Iowa 1999). In Schlader we quoted from Salem v. United States Lines Co., 370 U.S. 31, 35, 82 S.Ct. 1119, 1122, 8 L.Ed.2d 313, 317 (1962):

[I]f all the primary facts can be accurately and intelligibly described to the jury, and if they, as [persons] of common understanding, are as capable of comprehending the primary facts and of drawing correct conclusions from them as are witnesses possessed of special or peculiar training, experience, or observation in respect of the subject under investigation [expert testimony is not required].

Schlader, 591 N.W.2d at 14. The bases of the plaintiffs claims in this case are, like in Oswald, “that the care provided by defendants ... fell below the standard of medical professionalism understood by laypersons and expected by them.” Oswald, 453 N.W.2d at 638 (holding callous remarks by nurses and doctor’s admitted failure to determine viability of the fetus were standards of care understood and expected by laypersons); see also Estate of Long v. Broadlawns Med. Ctr., 656 N.W.2d 71, 83 (Iowa 2002). In Long a plaintiff alleged a psychiatric doctor negligently failed to notify the plaintiffs decedent, who had been murdered by the doctor’s patient, that the murderer’s release was imminent. The defendant in Long claimed that expert testimony was required to inform the jury on “the predictability and probability of the actions of a mental health patient.” Long, 656 N.W.2d at 82. The trial court rejected the defendants’ argument, and we affirmed on this rationale:

We, like the district court, struggle to see how expert testimony was required in this case. The core negligence issue presented focused on whether Broad-lawns fulfilled a promise to Jillene to notify her upon Gerald’s discharge. A consideration of the issues surrounding this alleged promise raised no real questions of a “scientific, technical, or other specialized” nature that would require testimony by an expert to “assist the trier of fact to understand the evidence or to determine a fact in issue.” Iowa R. Evid. 5.702.

Id. at 83. We concluded that expert testimony on causation and the predictability and probability of the actions of a mental-health patient were not required to be demonstrated by expert testimony. Id.

The evidence concerning the lack of communication between the doctor and the PACU nurses, the possible mix-up in patient charts, and the doctor’s admission of error are capable of being resolved by a fact finder without the testimony of experts. The court erred in concluding otherwise and granting summary judgment against the plaintiff on that basis.

IV. Emotional Distress Damages.

The defendants contend the plaintiffs claims for emotional distress could not be established without the aid of an expert witness. The plaintiff saw a psychiatrist four times, and the psychiatrist referred Campbell to a counselor, a licensed social worker, who was employed by Covenant Clinic Psychiatry. The counselor’s report concluded that “this [reinfusion] was an event that had occurred that was traumatizing and resulting in the rigid thought process, may be triggering a depression that needed to be addressed.” While this statement did not amount to an opinion by a medical doctor based on a reasonable degree of medical certainty, as often is presented, this statement together with the plaintiffs testimony concerning the connection between the event and his later psychological problems present a sufficient factual dispute to avoid summary judgment.

The defendants also contend that the plaintiff can point to no accompanying physical injury to provide a basis for emotional-distress damages. See Oswald, 453 N.W.2d at 639 (noting general rule requiring physical injury). However,

[a]n exception exists ... where the nature of the relationship between the parties is such that there arises a duty to exercise ordinary care to avoid causing emotional harm.

Id. (citing Niblo v. Parr Mfg., Inc., 445 N.W.2d 351, 354 (Iowa 1989)). We cited several cases involving recovery for “deeply emotional” events that did not require an accompanying physical injury and concluded:

Under the comparable circumstances demonstrated by this record, we think liability for emotional injury should attach to the delivery of medical services.

Oswald, 453 N.W.2d at 639. We believe the present case falls under the same rationale and that the plaintiff was not required to establish an accompanying physical injury.

V. Conclusion.

Under our summary-judgment rules, “[t]he burden is upon the party moving for summary judgment to show [the] absence of any genuine issue of a material fact. All material properly before the court must be viewed in the light most favorable to the opposing party.”

Oswald, 453 N.W.2d at 635 (quoting Daboll, 222 N.W.2d at 731).

When we view the evidence in this record in the fight most favorable to the plaintiff, we conclude there are disputed issues of fact that preclude entry of summary judgment. We therefore reverse and remand for trial.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: STREIT, Justice.

license: Public Domain

text:
    IOWA DEPARTMENT OF TRANSPORTATION, Plaintiff, v. IOWA DISTRICT COURT FOR DUBUQUE COUNTY, Defendant.
    No. 02-0824.
    Supreme Court of Iowa.
    Oct. 8, 2003.

      Thomas J. Miller, Attorney General, and Mark Hunacek, Assistant Attorney General, for plaintiff.
    Dan MeClean of McClean Law Office, Dyersville, for defendant.
   STREIT, Justice.

Thomas Naber wants the DOT to run his six-year driver’s license revocation for his third conviction of OWI concurrently with a prior revocation for refusing a chemical test. The district court ordered the DOT to do so, which Naber claims was a result of a plea agreement with the county attorney. The DOT filed a writ of certiorari, in which it alleges the district court has no authority to make such an order. The defendant contends the district court can do so, and that the interests of justice require us to uphold its order in this case. We sustain the writ of certiora-ri.

I. Background and Facts

In March 2001, Dyersville police arrested Thomas Naber for operating a motor vehicle while intoxicated (OWI), in violation of Iowa Code section 321J.2 (2001). After his arrest, Naber refused to take a breath test. See Iowa Code § 321J.6. In August 2001, the Iowa Department of Transportation (DOT) revoked Naber’s driver’s license for two years, on account of his failure to submit to the test. See Iowa Code §§ 321J.6, 321J.9.

In April 2002, Naber pled guilty to second-offense OWI. Because Naber had two previous convictions for OWI, the district court ordered the DOT to immediately revoke his driving privileges for six years. See id. § 321J.4(4). The court also ordered that the six-year revocation should run concurrently from the start of the prior administrative revocation for refusing to take the chemical test. The latter revocation had begun nearly nine months earlier. The district court’s order was apparently the result of negotiations between Naber and the assistant county attorney. There is, however, no record of the plea negotiations before us.

The DOT filed a writ of certiorari, claiming the district court, in dating the six-year revocation to commence with the start of the test refusal revocation, acted illegally. This court granted certiorari.

II. Scope of Review

In a certiorari action, we review the actions of the district court for errors at law. Iowa Dep’t of Transp. v. Iowa Dist. Ct. for Johnson County, 570 N.W.2d 461, 462 (Iowa 1997). “Certiorari is appropriate when a trial court is alleged to have exceeded its jurisdiction or to have acted illegally.” Iowa Dep’t of Transp. v. Iowa Dist. Ct. for Blackhawk County, 508 N.W.2d 411 (Iowa 1993).

III. The Merits

The DOT claims the district court acted illegally when it dated Naber’s mandatory six-year revocation for his third conviction of OWI to run concurrently with the start of a prior administrative revocation for failing to take a required chemical test. Naber disagrees, and argues that justice requires the plea agreement be enforced; defendants, he claims, must be able to depend on the word of the county attorney in plea agreements. Naber also contends a ruling to the contrary would infringe upon his rights to discovery and trial.

Iowa Code section 321J.4(4) states, in relevant part, that

Upon a plea or verdict of guilty of a third or subsequent violation of section 321J.2, the court shall order the department to revoke the defendant’s driver’s license or nonresident operating permit for a period of six years. The defendant shall not be eligible for a temporary restricted license for at least one year after the effective date of the revocation.

Iowa Code § 321J.4(4) (emphasis added). Although the DOT argues the plain language of Iowa Code section 321J.4(4) does not permit a court to date the six-year revocation to begin with a previous revocation for a chemical test refusal, we disagree. The first words of the statute (“[u]pon a plea or verdict of guilty”) only mandate that the court wait until the defendant is determined guilty, either by plea or verdict, before ordering the DOT to revoke the defendant’s license. It does not, by its terms, clearly prohibit retroactive dating of the six-year ban. Moreover, the phrase “after the effective date of the revocation” only forbids the defendant from receiving a temporary restricted license until a year after the effective date of the revocation — whenever that may be.

The plain language of Iowa Code section 321J.4(4) does not, on its face, put any restrictions upon when the district court may make the revocation effective. A statute is ambiguous when reasonable minds may differ on its proper interpretation. See Albrecht v. Gen. Motors Corp., 648 N.W.2d 87, 90 (Iowa 2002) (citing Mid west Auto. III, LLC v. Iowa Dep’t of Transp., 646 N.W.2d 417, 425 (Iowa 2002) (recognizing “[a]mbiguity may arise from specific language used in a statute or when the provision at issue is considered in the context of the entire statute or related statutes”)). Because reasonable minds may disagree on the issue in the present case — namely, whether the district court had the authority to date Naber’s six-year suspension to run concurrently from the start of his prior administrative revocation for a chemical test refusal—Iowa Code section 321J.4(4) is ambiguous.

Nevertheless, the district court acted illegally in dating the six-year revocation to commence with the start of the test refusal revocation. The district court’s action, in effect, impermissibly “credits” Naber’s pri- or administrative revocation towards his six-year revocation. The district court does not have the statutory authority to grant such a credit.

In State v. Tuitjer, 385 N.W.2d 246 (1986), we reached a similar conclusion. In Tuitjer, the district court ordered the DOT to credit two years of previously served license revocations towards the court’s imposition of a mandatory two-to-six-year revocation under the habitual offender statute. As in the present case, all of the revocations at issue in Tuitjer arose from the same set of facts. In Tuitjer, after examining the purposes of the various statutes, we stated that even in the absence of clear statutory language “the [legislative] objectives of our several license-revocation statutes ... would prevent habitual offenders from receiving credit for revocations that attend individual drunk driving incidents.” Tuitjer, 385 N.W.2d at 248. Recognizing that “[sjeveral Iowa statutes provide for the suspension or revocation of the driving privileges of persons who have been arrested for or convicted of OWI offenses,” we determined “[t]he effect of the credit would be to reduce the period of license revocation below the two-year statutory minimum prescribed for habitual offenders,” and that the district court lacked the authority to do so. Id. at 246.

As in Tuitjer, Naber’s license was revoked under two distinct provisions of the Iowa Code — for two distinct reasons (although arising out of the same incident). Each provision has a different legislative purpose. For failing to submit to a chemical test, Naber’s license was administratively revoked under our implied consent law. See Iowa Code §§ 321J.6, 321J.9. We have previously stated “[t]he underlying purpose of our implied consent law is to prevent highway deaths due to intoxicated drivers.” State v. Green, 470 N.W.2d 15, 18 (Iowa 1991). For his third OWI conviction, Naber’s license was revoked for six years. See Iowa Code 321J.4. On the other hand, [t]he purpose of the license revocation provision in section 321J.4 is to protect the public by providing that drivers who have demonstrated a pattern of driving while intoxicated be removed from the highways. State v. Moore, 569 N.W.2d 130, 132 (Iowa 1997) (citing State v. Blood, 360 N.W.2d 820, 822 (Iowa 1985)). The section 321J.4(4) revocation is therefore specifically designed to protect the public from the especially grave danger posed by recidivist drunk drivers.

Naber argues the legislature’s intent to protect the citizenry is satisfied so long as the length of each revocation is enforced. Naber’s argument fails once we recognize the different purposes of the two revocations. To retroactively permit the section 321J.4 and section 321J.6 revocations to start at the same time, gives, in effect, the defendant “credit” for his prior revocation, even though the purposes of the two provisions differ and in the absence of any statutory authority to do so. In sacrificing the legislative desire of section 321J.4(4) to protect the public from recidivist drunk drivers, the district court has — by about nine months — illegally reduced the statutory mandate of the legislature to revoke Naber’s license for six years. In the present case, as in Tuitjer, the district court “effectively nullified” an express mandate of the Code. See Tuitjer, 385 N.W.2d at 247; Iowa Code § 321J.4(4) (the court “shall order the department to revoke the defendant’s driver’s license ... for a period of six years” (emphasis added)).

Naber argues justice requires us to uphold the terms of the plea agreement. Defendants, Naber claims, must be able to rely upon the word of the county attorney. Because there is no record of the plea proceedings before us, we refuse to speculate on its terms. Even if there was such an agreement, we have previously held that the county attorney has no authority to negotiate for the DOT. Iowa Dep’t of Transp. v. Iowa Dist. Ct. for Bremer County, 534 N.W.2d 457, 460-61 (Iowa 1995). Any plea agreement entered into between the county attorney and Naber, altering a mandatory license revocation, cannot bind the DOT. See id.

Lastly, Naber contends that overturning the plea bargain will, in effect, take away his rights to discovery and trial. Naber argues his license will be revoked twice on the same set of facts, and, if he had not asserted his rights to discovery and trial (consuming part of the thirteen months from arrest to plea), his revocations, both beginning immediately, would have resulted in less cumulative revocation time. Naber’s argument, however, fails to recognize that “license revocation proceedings are separate and distinct from criminal charges arising from the same incident, and [e]ach action proceeds independently of the other.” Heidemann v. Sweitzer, 375 N.W.2d 665, 668 (Iowa 1985) (citations omitted). As we have just pointed out, each revocation serves a different legislative purpose, and results from a different prohibited behavior. That better consequences may ensue from pleading guilty sooner rather than later does not necessarily result in a deprivation of a defendant’s rights to trial and discovery; this is not a case where the statute expressly authorizes additional revocation time merely because a defendant exercises his right to discovery and trial. Naber will not serve more revocation time than either section of the statute authorizes. The statute, however, does not authorize the district court to date a mandatory third-offense OWI license revocation to retroactively run concurrently with the start of a prior administrative revocation for a chemical test refusal. The district court acted illegally when it did so. The writ, therefore, must be sustained.

IV. Conclusion

The district court acted illegally when it dated Naber’s six-year revocation for his third conviction of OWI to run concurrently with the start of a prior administrative revocation for failure to take a chemical test. Although Iowa Code section 321J.4(4) is ambiguous, there is no statutory authority for the district court’s action, which is, in effect, an impermissible “credit” for a prior administrative revocation. Nor can any alleged plea agreement between Naber and the county attorney bind the DOT. Lastly, because our interpretation of section 321J.4(4) does not infringe upon Naber’s rights to discovery and trial, the writ must be sustained.

WRIT SUSTAINED.

      . The order stated: "The Iowa Department of Transportation shall immediately revoke the defendant’s privilege to operate motor vehicles in the State of Iowa for a period of six years, concurrent with suspension by DOT which began 8-1-01.” We have examined the district court file, however, and Naber’s driving record, found therein, indicates the revocation for test refusal began on August 8, 2001. The parties did not raise this discrepancy.

      . Iowa Code section 321J.4(4) imposes a six-year revocation and forbids the issuance of a temporary restricted permit during the first year. The parties assume section 321J.4(4) thus imposes two revocations, a "six-year revocation” and a "one-year hard-revocation.” This is a mistaken assumption. The so-called "one-year hard-revocation” is merely a further condition which is placed upon the six-year revocation — namely, that a temporary restricted permit shall not be granted during the first year of the six-year revocation. In what follows, then, we do not refer to two distinct revocations, but rather only to "the six-year revocation” or "the section 321J.4(4) revocation.”

      . The language of section 321J.4(4) conflicts, for example, with a predecessor of our habitual offender statute, which required a revocation to run "from the date of judgment.” Iowa Code § 321.560 (1977). Thus our dicta in State v. Onstot, 268 N.W.2d 219 (Iowa 1978), a case involving that statute, does not apply. In Onstot, although we rejected, on other grounds, a challenge to the district court’s retroactive dating of a habitual offender revocation, we criticized the district court’s selection of a date in the past from which a revocation should run as an "attempt ... to frustrate the clear demands of the statute.” Onstot, 268 N.W.2d at 220. The language of section 321J.4(4), however, contrasts sharply with section 321.560 (1977).


author: TERNUS, Justice.

text:
    BEAL BANK, Appellant, v. Edwin R. SIEMS, Michael Fort, and Teresa A. Vokoun, Appellees.
    No. 02-0556.
    Supreme Court of Iowa.
    Oct. 8, 2003.

      Michael J. Cunningham and Jeffrey A. Kelso of Howe, Cunningham & Lowe, P.L.C., Urbandale, for appellant.

      Jerrold Wanek of Garten, Wanek & Morse, Des Moines, for appellees Edwin R. Siems and Teresa A. Vokoun.
    Jerry C. Estes of Estes Law Offices, Fort Dodge, for appellee Michael Fort.
   TERNUS, Justice.

The appellant, Beal Bank, sought to enforce its rights under various mortgages and personal guaranties given by the ap-pellees, Edwin R. Siems, Michael Fort, and Teresa A. Vokoun, to secure a loan made by a predecessor bank to Douglas Avenue Storage Limited [DASL], The district court ruled Beal Bank could not foreclose a mortgage given on property owned by Vokoun and located on North 3rd Street in Marshalltown because it was the homestead. The court also held Beal Bank could not enforce a personal guaranty given by Fort because Fort’s guaranty had been discharged. On Beal Bank’s appeal, we affirm.

I. Background Facts and Proceedings.

Edwin Siems, Wayne Catron, Timothy Titus, and Michael Fort were the original owners of DASL, a limited liability company formed for the purpose of building and operating a large storage facility in Urban-dale, Iowa. From the beginning, it was anticipated that Fort’s involvement would be limited to construction of the facility and its initial operation. Construction financing was obtained through Hartford Carlisle Savings Bank [hereinafter “Hartford”] in 1996. Collateral for the loan consisted of a mortgage on the storage facility, unlimited personal guaranties from Catron and Siems, and a $100,000 guaranty from Fort. These guaranties expressly covered future loans to DASL and were effective until the debt was satisfied or until the guarantor sent notice of revocation by certified mad.

Vokoun was Siems’ wife. She mortgaged two Marshall County properties titled in her name as security for the loan made to DASL. One property was identified as 304 North 3rd Street, Marshall-town, Iowa, and the other as 1351 Prairie Avenue, Marshalltown, Iowa. It was understood that these mortgages would be released upon completion of construction and that occurred in April 1998.

During the summer of 1998, Titus bought out Catron’s and Fort’s interests in DASL. Hartford approved the buyout and, pursuant to a conversation between Fort and Hartford’s president, Fort wrote to the president setting forth the conditions of the sale and enclosing a notarized assignment of Fort’s interest to Titus. Fort requested in the letter that Hartford “hold on” to the assignment until three matters had been completed: (1) a “full release” of Fort’s guaranty; (2) payment of the sale price; and (3) payment of a bill for tax services rendered to DASL by Fort. Fort did not specify the' manner of release of his guaranty, but checks were subsequently issued by Hartford in satisfaction of the second and third conditions.

In September 1998 permanent financing was put into place with a new loan issued by Hartford to DASL, and the original loan was marked paid. The new note was secured by mortgages on DASL’s real estate, as well as personal guaranties from Vokoun, Siems, and Titus. Vokoun also executed new mortgages on the two Marshall County properties. At that time, Vokoun was living at the North 3rd Street address, caring for her mother who had a terminal illness. Siems was living at the residence on Prairie Avenue. Siems did not sign either mortgage.

Subsequently, Hartford went into receivership and the Federal Deposit Insurance Corporation (FDIC) was appointed the receiver. The promissory notes, guaranties, and mortgages associated with DASL were purchased from the FDIC by Beal Bank. By then, DASL was in default. So, on July 19, 2000, Beal Bank filed a petition for foreclosure on DASL’s property and, in addition, sought recovery from the various guarantors and mortgagors securing the September 1998 DASL note. A judgment and decree of foreclosure was entered against DASL. A subsequent sale of the storage facility left a sizable deficiency judgment. Beal Bank then attempted to collect the deficiency from Siems, Catron, Titus, Vokoun, and Fort based on their personal guaranties and to foreclose on the mortgages given by Vok-oun.

Prior to commencement of this action, Siems, Vokoun, and Titus received a discharge from their debts in bankruptcy court. In the bankruptcy proceeding involving Siems and Vokoun, Vokoun asserted the North 3rd Street property was exempt as her homestead, while Siems claimed the Prairie Avenue property as his exempt homestead. Both exemptions were allowed, although the discharge stated that a creditor having a valid mortgage against the debtor’s property could enforce the lien if it had not been eliminated in the bankruptcy case. (At the time the present case was tried, Siems and Vokoun resided together at the Prairie Avenue property and considered it to be their homestead.)

The case proceeded to trial before the court. The only issues submitted to the court were the enforceability of the mortgages given by Vokoun on the Marshall County properties and the liability of Fort under the personal guaranty he gave Hartford to secure the construction loan. (The plaintiff had previously dismissed Titus from the action, and Catron confessed judgment at trial and was excused from further proceedings.)

The district court ruled that the mortgages were not enforceable. First, the court noted that Siems, the mortgagor’s spouse, did not sign the mortgages and, therefore, pursuant to Iowa Code section 561.13 (2001), the encumbrances were “absolutely void,” not only as to Siems, but as to Vokoun, the mortgagor, as well. Alternatively, the court concluded that Siems enjoyed a dower right in the properties that could not be divested without his consent.

Regarding the limited guaranty by Fort, the trial court concluded it had been discharged in several ways or abandoned by Hartford. First, the court ruled that Hartford’s actions upon Fort’s buyout by Titus operated to discharge the guaranty. The court rejected Beal Bank’s argument that revocation by certified mail was required, noting that the discharge here was more akin to a release than a revocation. Secondly, the court found evidence of abandonment of Fort’s guaranty in the permanent financing documents. The new financing did not include a personal guaranty from Fort, even though the remaining owners signed new guaranties. In addition, the new note expressly included as “collateral” the guaranties of Siems, Vok-oun, and Titus, but not those of Catron and Fort. Moreover, a subsequent promissory note for $25,000, while listing all five individuals, showed that Catron’s and Fort’s names had been crossed out. The final reason mentioned by the court in support of its ruling was the fact that under banking standards Fort should have been given notice of the new note and terms if he was to guarantee the obligation, but the record showed he was not given such notice.

Although Beal Bank argued that it was a holder in due course, entitled to enforce Fort’s guaranty, the trial court held the documents known to the plaintiff provided it with notice that Fort’s guaranty had been released. The court also rejected Beal Bank’s contention that the statute of frauds relating to credit agreements contained in Iowa Code section 535.17(2) barred Fort’s oral understanding with Hartford. The court concluded this code section was not applicable under the facts of this case.

Beal Bank’s appeal from these rulings is now before this court. Beal Bank challenges the district court’s application of section 561.13 to bar enforcement of the mortgage on the North 3rd Street property. It also claims error in the trial court’s conclusion that Fort’s obligation under the guaranty was discharged.

II. Enforceability of Vokoun’s Mortgage on North Srd Street Property.

A. Scope of review. Our review of the trial court’s judgment on Beal Bank’s equitable claim to foreclose Vok-oun’s mortgage is de novo. Hawkeye Bank & Trust Co. v. Michel, 373 N.W.2d 127, 129 (Iowa 1985).

B. Issues. The trial court held the mortgages executed by Vokoun on the Marshall County properties were void because Siems, Vokoun’s spouse, had not signed the mortgages. Beal Bank challenges this ruling only as it pertains to the North 3rd Street property. The plaintiff does not assign as error the court’s ruling that the mortgage given on the Prairie Avenue property is unenforceable and, therefore, we do not address the validity of the mortgage on that real estate. Additionally, because we conclude the North 3rd Street property’s status as a homestead renders the mortgage on that parcel unenforceable, we do not consider the district court’s alternative ruling that Siems’ dower interest in the property precluded foreclosure of the mortgage.

C. Discussion. Our analysis begins with the statute imposing restrictions on the transfer or encumbrance of homestead property, Iowa Code section 561.13. That statute provides in relevant part:

A conveyance or encumbrance of ... the homestead, if the owner is married, is not valid, unless and until the spouse of the owner executes the same or a like instrument, or a power of attorney for the execution of the same or a like instrument, and the instrument or power of attorney sets out the legal description of the homestead.

Iowa Code § 561.13; see also id. § 561.16 (providing person’s homestead is exempt from judicial sale). There is no dispute in the present case that Siems — the spouse of the owner — did not execute the mortgage Beal Bank seeks to enforce, nor did he sign a similar instrument or power of attorney. The only issue, then, is whether the North 3rd Street property qualifies as a “homestead.”

The legislature has defined a “homestead” as follows:

The homestead must embrace the house used as a home by the owner, and, if the owner has two or more houses thus used, the owner may select which the owner will retain....

Iowa Code § 561.1 (emphasis added). In addition to this statutory definition, this court has confirmed that actual use, not a mere intent to occupy the property, must exist “to impress the property with the character of a homestead.” Elston & Green v. Robinson, 23 Iowa 208, 211 (1867); accord Hale v. Heaslip, 16 Iowa 451, 452 (1864). The person claiming a homestead has the burden to establish this claim. Hawkeye Bank & Trust Co., 373 N.W.2d at 130.

In challenging the trial court’s decision that the North 3rd Street property qualified as a homestead, Beal Bank appears to concentrate on the fact that, at the time the mortgage was given and through the time of trial, Siems lived at the Prairie Avenue residence and claimed that property as his homestead. The plaintiff argues that Siems “selected his homestead as the Prairie Avenue property, not the North 3rd Street property.” Therefore, argues Beal Bank, “he should not be granted additional homestead rights as to the separate property in which his wife was residing.”

Where the spouse of the owner lives, however, is not the focus of the inquiry in determining whether a certain parcel of real estate is a homestead. See Lunt v. Neeley, 67 Iowa 97, 100, 24 N.W. 739, 740 (1885) (holding fact that spouse of owner did not reside in homestead at time of conveyance “did not affect the character of the property” as homestead property; so long as owner continued to reside there, “the homestead rights of both were preserved”). Rather, the determinative fact is whether “the owner” used the house as a home and whether “the oimer” selected that house as his or her home. See Iowa Code § 561.1 (emphasis added). “The owner” in the present case is Vokoun, not Siems. The record is undisputed that at all material times, Vokoun lived at the North 3rd Street residence, using it as her home and claiming it as her home. Thus, at the time Vokoun signed the 1998 mortgage, the North 3rd Street property was her homestead. Consequently, under section 561.13, Vokoun’s homestead could not be encumbered without the consent of her spouse—Siems. Because Siems did not consent, the mortgage is not valid. See Anderson v. Culbert, 55 Iowa 233, 235, 7 N.W. 508, 508 (1880) (holding husband’s conveyance of homestead in exchange for other real estate was void where wife did not sign contract, even though “she had knowledge of the trade and encouraged it”).

Beal Bank also argues that because “[n] either party resided in and claimed the North 3rd Street property as their homestead at the time of trial[,] ... neither party had the right to claim the homestead exemption as a defense to [Beal Bank’s] foreclosure petition concerning the North 3rd Street property.” This argument has no merit, however, because the validity of the encumbrance is determined as of the time it is executed. See Bebden v. Younger, 76 Iowa 567, 570, 41 N.W. 317, 318 (1889) (holding abandonment of homestead after conveyance by wife alone “did not validate her transfer of the property without the concurrence of the husband”); Lunt, 67 Iowa at 101, 24 N.W. at 740 (holding that invalid assignment “was not validated by the subsequent abandonment of the property” by the owner). Thus, Vokoun’s abandonment of her homestead at North 3rd Street and her relocation to the Prairie Avenue property after execution of the mortgage does not render the mortgage enforceable.

Because the mortgage sought to be enforced by Beal Bank was not signed by Siems, it is void as to both Siems and Vokoun. See Hostetler v. Eddy, 128 Iowa 401, 406, 104 N.W. 485, 487 (1905) (holding contract void, due to failure of wife to sign contract, “was void in favor of both husband and wife”); Goodwin v. Goodwin, 113 Iowa 319, 324, 85 N.W. 31, 32 (1901) (“A conveyance of a homestead occupied by husband and wife, in which the wife does not join, is invalid for any purpose.”); see also Thayer v. Sherman, 218 Iowa 451, 458, 255 N.W. 506, 509 (1934) (holding statutory provision is “for the benefit of all who are interested in the homestead”). Therefore, based on our de novo review, we agree with the trial court that the plaintiff cannot foreclose the mortgage on the North 3rd Street property.

III. Enforceability of Fort’s Guaranty.

A. Issues. Beal Bank argues that it should be able to recover under Fort’s guaranty for two reasons. First, it claims, contrary to the district court’s view of the evidence, that there is insufficient proof that the guaranty was discharged. This argument has two components. ■ Beal Bank asserts that any discharge of Fort had to be in writing and signed by Hartford pursuant to the statute of frauds for credit agreements set forth in Iowa Code section 535.17(2). Even if that statute does not apply, contends the plaintiff, the evidence falls short of proving Hartford abandoned Fort’s guaranty. In addition to this challenge to the sufficiency of the evidence, Beal Bank claims it is not bound by the allegedly undocumented release of Fort because it is a holder in due course. We consider each argument separately.

B. Scope of review. We review the trial court’s decision that Fort was not liable under his guaranty for the September 1998 loan to DASL for correction of errors at law. Wellman Sav. Bank v. Adams, 454 N.W.2d 852, 855 (Iowa 1990). Although the trial court’s legal conclusions are not binding under this standard of review, we are bound by its findings of fact, provided they are supported by substantial evidence. Land O’Lakes, Inc. v. Hanig, 610 N.W.2d 518, 522 (Iowa 2000). “Evidence is substantial for purposes of sustaining a finding of fact when a reasonable mind would accept it as adequate to reach a conclusion.” Falczynski v. Amoco Oil Co., 533 N.W.2d 226, 230 (Iowa 1995). “In assessing the evidence, we view the record in the light most favorable to the prevailing party, indulging in all legitimate inferences that may fairly and reasonably be deduced from the evidence.” Pollmann v. Belle Plaine Livestock Auction, Inc., 567 N.W.2d 405, 409 (Iowa 1997).

C. Applicability of statute of frauds for credit agreements. Iowa Code section 535.17(2) provides in pertinent part:

Unless otherwise expressly agreed in writing, a modification of a credit agreement which occurs after the person asserting the modification has been notified in uniting that the oral or implied modifications to the credit agreement are unenforceable and should not be relied upon, is not enforceable in contract law by way of action or defense by any party unless a writing exists containing the material terms of the modification and is signed by the party against whom enforcement is sought....

Iowa Code § 535.17(2) (emphasis added). A “ ‘[c]redit agreement’ means any contract made or acquired by a lender to loan money, finance any transaction, or otherwise extend credit for any purpose, and includes all of the terms of the contract.” Id. § 535.17(5)(e). A “modification” of a credit agreement “includes change, addition, waiver, rescission, and any other variation of any kind whether expressly made or implied by, or inferred from, conduct of any kind.” Id. § 535.17(5)(/).

In arguing the applicability of these provisions, Beal Bank contends Fort is attempting to modify the terms of his guaranty. Fort’s guaranty was expressly made “continuous” and expressly covered all DASL indebtedness to Hartford existing at the time the guaranty was executed as well as debts “hereinafter incurred or created.” The plaintiff claims any modification of these terms that would relieve Fort from liability for the September 1998 loan to DASL is unenforceable because it was not in writing and signed by Hartford as required by section 535.17(2). The trial court rejected Beal Bank’s argument on several grounds, but we limit our discussion to one. We agree with the trial court’s conclusion Fort was not given the notification mandated by this statute so as to trigger application of the in-writing requirement.

Section 535.17(2) makes an oral modification of a credit agreement unenforceable only if “the person asserting the modification [here Fort] has been notified in writing that oral or implied modifications to the credit agreement are unenforceable.” Iowa Code § 535.17(2). Although “[t]his notification can be included among the terms of a credit agreement,” “[t]o be effective, the notification and its language must be conspicuous.” Id. The statute provides explicit guidance on compliance with this requirement:

A notification referred to in subsection 2 in the following form in boldface, ten-point type, complies with the requirements of this section:
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.

Id. § 535.17(3).

In addition, we find the dictionary definition of the term “conspicuous” to be helpful in ascertaining compliance with the statutory notification requirement. See Midwest Automotive III, LLC v. Iowa Dep’t of Transp., 646 N.W.2d 417, 426 (Iowa 2002) (looking to dictionary definition to determine meaning of statutory terms). Two common meanings of “conspicuous” are: (1) “obvious to the eye or mind: plainly visible”; and (2) “attracting or tending to attract attention by reason of size, brilliance, contrast, station.” Webster’s Third New International Dictionary 485 (unabr. ed.2002).

Turning to the guaranty at issue here, we find the following “miscellaneous provision”:

This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Guaranty. No alteration of or amendment to this Guaranty shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment.

This language was not in boldface type, nor was the type larger than the type size of the surrounding paragraphs. There was nothing noticeable about this provision and it had no attributes that would have attracted the reader’s attention to it. In short, the notification given to Fort in the guaranty was not conspicuous. Compare Clinton Nat’l Bank v. Saucier, 580 N.W.2d 717, 722 & n. 3 (Iowa 1998) (impliedly finding notification was adequate where notice was set off in boldface type and letters were all capital). Under these circumstances, the restriction set forth in section 535.17(2) requiring that any modification to a credit agreement be in writing in order to be enforceable does not apply.

D. Abandonment of guaranty. Having determined that any release of Fort from his guaranty need not be in a writing signed by Hartford, we now examine the record to decide whether there is substantial evidence to support the trial court’s factual finding that Hartford abandoned Fort’s agreement to guarantee future loans made to DASL. “A guaranty contract may be abandoned by the creditor so far as it relates to future transactions, so that the guarantor is not liable for future advances to the principal debtor.” 38 Am.Jur.2d Guaranty § 80, at 939 (1999). We think there is substantial evidence that such an abandonment occurred here.

The testimony and exhibits introduced at trial provide substantial support for the following facts. The parties to the initial transaction anticipated that Fort’s involvement in the storage facility business would be limited to the construction phase and the initial operation of the facility. Consistent with this understanding, Titus undertook to buy out Fort’s small ownership interest in DASL after construction was completed in the summer of 1998. One condition of the buyout was that Fort would be released from his $100,000 guaranty. Fort discussed the transaction with the president of Hartford and it was agreed that Fort would write a letter to Hartford setting forth the terms of the buyout. Fort did so, enclosing an assignment to Titus of Fort’s interest in DASL. Fort instructed Hartford not to forward the assignment until Fort had been paid the purchase price, Fort’s bill for services rendered to DASL had been paid, and Fort had been released from the guaranty. Hartford issued the checks, but did not prepare a formal, written release or cancellation of Fort’s guaranty.

Nonetheless, Hartford’s subsequent actions support the trial court’s finding that Hartford thereafter abandoned Fort’s guaranty. When permanent financing was put into place, Fort’s guaranty was not listed as collateral. Fort was not notified of the terms of this financing, as would be the normal banking practice if Fort had been considered a guarantor of the debt. In contrast, when the guaranty was initially executed in 1996, Fort was provided a “notice of final agreement” informing him of the terms of the original construction loan he had agreed to guarantee. We think these well-supported facts support the trial court’s determination that Hartford abandoned Fort’s guaranty when Fort sold his interest in DASL to Titus.

E. Holder in due course. Beal Bank argues that any abandonment of the Fort guaranty by Hartford is not binding on the plaintiff because it is a holder in due course of the guaranty. In response, Fort contends Beal Bank had notice of Hartford’s abandonment of Fort’s guaranty and therefore holds the guaranty subject to Fort’s defense of discharge. The trial court agreed with Fort on this issue, concluding “any reasonable banker should have known of Fort’s discharge from [Hartford’s] records.”

Both parties cite to article 3 of Iowa’s Uniform Commercial Code in support of their respective arguments. See Iowa Code ch. 554, art. 3 (1999). Accordingly, we accept the parties’ apparent agreement as to the applicability of this statute and rely on its provisions in determining the correctness of the trial court’s ruling.

Iowa Code section 554.3302(2) states that a defense of discharge “is effective against a person who became a holder in due course with notice of the discharge.” Id. § 554.3302(2). “A person has ‘notice’ of a fact when ... from all the facts and circumstances known to the person at the time in question the person has reason to know that it exists.” Id. § 554.1201(25)(c). “A person ‘knows’ or has ‘knowledge’ of a fact when that person has actual knowledge of it.” Id. Given the applicable standard of review, our role is simply to ascertain whether there is substantial evidence to support the trial court’s factual finding that Beal Bank had “notice,” as that term is defined in chapter 554, of Fort’s discharge.

Beal Bank makes much of the fact that the DASL loan file it obtained upon purchase of Hartford’s assets did not contain Fort’s letter to Hartford making his assignment conditional on Hartford’s release of Fort’s guaranty. Notwithstanding Beal Bank’s ignorance of this communication, we think the record provides substantial evidentiary support for the trial court’s factual finding that Beal Bank had notice of Hartford’s 1998 abandonment of the Fort guaranty. Fort’s expert witness, who had considerable experience in the banking industry, testified that it was the custom and practice in that industry to list all guarantors in the promissory note. Yet, Beal Bank knew that the loan documents representing DASL’s indebtedness to Hartford did not list Fort’s guaranty as collateral. Beal Bank also knew that Fort had not been given a “notice of final agreement,” as debtors and guarantors customarily are. Based on the information actually known by the plaintiff, it had “reason to know” that Fort had been discharged from his obligation.

In conclusion, there is no basis to overturn the trial court’s factual finding that Beal Bank had notice of Fort’s discharge, as this finding is supported by substantial evidence. Similarly, we find no error in the trial court’s conclusion that in view of Beal Bank’s knowledge, its status as a holder in due course did not prevent Fort’s assertion of his discharge defense against the plaintiff in this action.

IV. Summary.

Upon our de novo review of the trial court’s ruling that Beal Bank could not foreclose the mortgage executed by Vok-oun on the North 3rd Street property, we affirm. This property qualified as Vok-oun’s homestead at the time of the mortgage and the absence of her spouse’s consent to this encumbrance renders the mortgage void and unenforceable.

Upon our review of the trial court’s ruling that Beal Bank could not recover under Fort’s guaranty because it had been abandoned by Hartford, we also affirm. The statute of frauds for credit agreements contained in Iowa Code section 535.17(2) does not apply because Fort was not given conspicuous notice that any oral modifications to his guaranty agreement were not enforceable. In addition, our review of the record reveals substantial evidence to support the trial court’s factual findings (1) that Hartford abandoned Fort’s guaranty as to any future advances to DASL when Fort sold his interest in DASL, and (2) that Beal Bank had notice of this abandonment so as to take the guaranty subject to the defense of discharge.

AFFIRMED.

      . Beal Bank's failure to challenge the trial court’s exemption of the Prairie Avenue property also undermines its argument that Siems and Vokoun cannot claim both properties as their homestead. While it is true that a property owner must choose which property is to be the "homestead," see Iowa Code § 561.1, the only issue before us is whether the parties’ claim of the North 3rd Street properly as a homestead is legitimate. We cannot "fix” any error in the trial court’s recognition of two homesteads when there is no challenge lodged against the second homestead, here the Prairie Avenue property.


author: CADY, Justice.

text:
    Arnis and Lucille LAMBERTS, Appellants, v. John LILLIG, Appellee.
    No. 02-0435.
    Supreme Court of Iowa.
    Oct. 8, 2003.

      Stacey N. Warren of Babich, Goldman, Cashatt & Renzo, P.C., Des Moines, and Robert H. Laden of Laden & Pearson, P.C., Des Moines, for appellants.
    Thomas J. McCann of Law Office of Thomas J. McCann, Des Moines, for appel-lee.
   CADY, Justice.

In this appeal, we consider the constitutionality of another subsection of Iowa’s grandparent visitation statute. As in Santi v. Santi 633 N.W.2d 312 (2001) and In re Marriage of Howard, 661 N.W.2d 183 (2003), we conclude that the subsection of the statute at issue in this case is unconstitutional. We also consider and reject the appellants’ argument that the district court erred in determining an alleged contractual agreement signed by the parties at the end of a mediation session was unenforceable. We affirm the ruling of the district court.

I. Background Facts and Proceedings.

Like Santi and Howard, this case involves a family wrenched apart by conflict over visits between grandparents and grandchildren. Arnis and Lucille Lamberts (Arnie and Lucy) are the maternal grandparents of two children, Robert and Alexis. Robert and Alexis’ father, John Lillig (John), was married to Arnie and Lucy’s daughter, Leslie. Tragically, Leslie died in April 1999 from complications arising from Alexis’ birth.

Prior to Leslie’s passing, Arnie and Lucy and the Lillig family maintained a strong familial bond, which included regular contact with one another. Arnie and Lucy took an active role in their grandson’s life and no doubt looked forward to a similar role with their future granddaughter. After Leslie’s death, the family members grew closer in many ways. Arnie offered John a job with his company, which allowed John to spend additional time with his children while also earning a living. Lucy took on the role of surrogate mother to Alexis, although Robert remained in day care to avoid disrupting his life any further. John and the children ate dinner with Arnie and Lucy every evening.

As the months passed, however, John began to regain his footing and the extended family spent less and less time together. A few months after Leslie’s death, John chose to take Alexis out of Lucy’s care and placed her at the day care that Robert attended. John explained that he did this to provide the children some continuity and togetherness and to assure that he had time alone with them during evenings. The family’s nightly dinners also ended and visits became less frequent. Arnie and Lucy’s consternation over the situation grew.

In November 1999, John met a woman, Arnie, and the two began dating. As John and Amie’s relationship advanced, the Lil-lig children’s contact with their maternal grandparents declined further. The worsening visitation situation began to carry over into nearly every part of the family’s interaction. At one point, Robert told Arnie, “granny doesn’t like you.” Comments of this nature led to a confrontation between John and Arnie and Lucy and resulted in John quitting the job Arnie had given him after Leslie died. John also asked that Arnie and Lucy come to his home to visit the children rather than him bringing the children to them. Soon, the family’s relationship had deteriorated to the point that they communicated only through emails.

In July 2000, Arnie and Lucy, apparently concerned about the effect John and Amie’s relationship was having on their interaction with Robert and Alexis, filed a petition for grandparent visitation pursuant to Iowa Code section 598.35(3) (2001), which permits a district court to order visitation in the event “[t]he parent of the child, who is the child of the grandparent, ... has died.” In September 2000, Arnie and Lucy were granted temporary visitation with their grandchildren pending a final ruling on visitation. Not long afterward, John and Amie married.

With a January 2001 trial date looming, all four adults — Arnie, Lucy, John, and Amie — met with a family counselor in hopes of reaching a solution to the conflict. Not surprisingly, the counselor’s interactions with the family revealed strong emotions and hard feelings. Focusing on Robert and Alexis’ interests, the counselor opined that each needed a “solid relationship” with Arnie and Lucy and that the children were “at risk” if outside intervention of some sort did not guarantee that relationship. Ultimately, the parties were unable to reach an agreement on visitation, and the dispute proceeded to trial.

At trial, the district court heard two days of testimony before deciding to continue the case. Rather than providing a final disposition in the case, the court suggested the parties should undertake additional formal mediation to resolve the situation. The court also set aside the temporary visitation order that previously had been established in Arnie and Lucy’s favor and warned that it would not rule on the visitation issue until this court issued its decision in Santi, which was then pending. While the parties planned for the mediation, Amie filed a petition for stepparent adoption, which was eventually granted in December 2001.

The court-ordered mediation proceeded similarly to the informal mediation previously conducted. However, in early March 2001, the parties apparently reached a breakthrough and signed a document providing limited visitation for Ar-nie and Lucy. The parties operated under these terms for a few months before John allegedly refused to provide further visitation sometime in the summer of 2001.

In January 2002, the parties returned to the district court for a final hearing and resolution to their dispute. After the hearing, the court took the case under advisement, with the benefit of our September 2001 ruling in Santi. On February 11, the court issued its ruling denying grandparent visitation based on its conclusion that Iowa Code section 598.35(3) was unconstitutional in light of our decision in Santi. The district court also determined that the document signed by the parties during the court-ordered mediation in March 2001 was unenforceable because there had been “no meeting of the minds as to the full parameters of the agreement.” Finally, the court offered its opinion as to what it believed was the best visitation arrangement possible if the statute was not unconstitutional.

The Lamberts appeal from the district court’s ruling, asking that we find the statute constitutional and implement the district court’s suggested visitation arrangement. However, for the reasons that follow, we affirm the district court’s ruling.

II. Standards of Review.

As we observed in Howard, “challenges to Iowa’s grandparent visitation statute raise ‘questions of substantive due process and liberty interests in the context of statutory interpretation’ obliging us ‘to review the record de novo, making our own evaluation of the totality of the circumstances.’ ” 661 N.W.2d at 187 (quoting Santi, 633 N.W.2d at 316). We normally review questions of contractual construction and interpretation as a matter of law. Hartig Drug Co. v. Hartig, 602 N.W.2d 794, 797 (Iowa 1999). However, to the extent our review focuses on the question of whether a party has contractually waived a constitutional right, our review is de novo. See Callender v. Skiles, 591 N.W.2d 182, 185 (Iowa 1999).

III. Constitutionality of Iowa Code Section 598.35(3).

This case presents our third opportunity to consider the constitutionality of Iowa’s grandparent visitation statute. However, only the facts of this case distinguish it from our considerations of the statute in Santi and Howard. Importantly, no alterations have been made to the statute itself — it remains in the same form as it was in both of our prior cases. Perhaps not surprisingly, we conclude that the same fundamental flaws found fatal to subsections (1) and (7) of the statute also doom subsection (3).

The overarching principle in our analyses of the grandparent visitation statute is that a parent’s “interest in the care, custody, and control of [his] children” is “ ‘perhaps the oldest of the fundamental liberty interests recognized by5 ” the United States Supreme Court. Santi, 633 N.W.2d at 317 (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 56 (2000)). We were guided by this principle in resolving Santi and we reconfirmed it in Howard, where we clarified that the parental interest is not lessened “by the marital status of [an] otherwise fit [parent].” Howard, 661 N.W.2d at 188. This means the state has “no lesser standard for intervention” in a case such as this one, in which one spouse has outlived the other spouse. Id. For this reason, we apply strict scrutiny constitutional analysis to Iowa Code section 598.35(3) just as we applied it in our examinations of subsections (1) and (7). See id. at 188-89; Santi, 633 N.W.2d at 318. This analysis requires “that any infringement by the state ... be ‘ “narrowly tailored to serve a compelling state interest.” ’ ” Howard, 661 N.W.2d at 188 (citations omitted).

The grandparent visitation statute has three elemental requirements that must be satisfied before visitation is granted: (1) the petition for visitation must be based on one of seven situations related to the family structure, (2) the decision to award visitation must be in the best interests of the children), and (3) a substantial relationship must exist between the grandparent(s) and grandchildren) before the filing of the petition. See Iowa Code § 598.35(3). In Howard, we examined each of these three requirements to determine whether any of them supported a compelling state interest. 661 N.W.2d at 191. We determined that both the situational and best interests elements failed to provide the necessary compelling state interest. See id. Yet, we also noted that the last element — a substantial relationship — revealed some legislative concern “with protecting children from substantial emotional harm,” a “type of standard other jurisdictions have imposed in considering grandparent visitation.” Id.

It is unnecessary to analyze this case under the compelling state interest prong of the strict scrutiny test because the visitation statute clearly is not narrowly drawn. Nevertheless, a compelling state interest analysis in this case would very likely reach the same conclusions reached in Howard, even though this petition for grandparent visitation arises under a different subsection of the statute. As previously noted, the parental interest is not lessened “by the marital status of [an] otherwise fit [parent].” Id. at 188. There have been no allegations that John is unfit, and there is no indication in the record that such an allegation, if made, could be established. This core fact alone undermines any potential finding of a compelling state interest in this case.

In Howard, we ultimately concluded that Iowa Code section 598.35(1) was unconstitutional because

the three requirements utilized by the statute to permit grandparent visitation to take place over the objection of a parent fail to impose the essential limitations demanded by Troxel to narrowly serve the compelling interest to intervene and to safeguard against unwarranted intrusions into the decisions of fit parents.

Id. at 191. We determined that that statute was deficient in three particulars: “on its face [it] not only fails to recognize the degree of harm or potential harm to the child needed to support state intervention, but it fails ‘to require a threshold finding of parental unfitness’ ” and “fails to require the court to consider a parent’s objections to allowing visitation.” Id. at 192 (citation omitted). “Thus, for the same reasons identified in Santi, the statute fail[ed] to comport with the Due Process Clause on its face” because “these provisions must be a part of any grandparent visitation statute under our Due Process Clause.” Id. at 191-92. Iowa Code section 598.35(3) is similarly deficient. For this reason, it too “fails to comport with the Due Process Clause on its face,” making it unconstitutional. Id. at 191. The district court correctly determined that the statute was unconstitutional and rightly denied Arnie and Lucy’s visitation petition.

IV. Enforceability of the Mediation Document.

At the end of the parties’ court-ordered mediation in March 2001, Arnie, Lucy, John, and Amie each signed a one-page, hand-written document drafted by the mediator, Bruce Buchanan, which stated the following:

We the undersigned agree to the following:
1. At least 1 full weekend overnights every 6 weeks.
2. Other visitation at the discretion of all parties.
3. Bruce Buchanan is the binding arbiter [sic] on all matters not revocable regarding] Alexis + Robert.

Arnie and Lucy argue that this document is an enforceable contract by which John guaranteed them limited visitation with Robert and Alexis. They point to several factors that they believe support this argument, including that mediation was undertaken at the direction of the district court, both parties later brought the document to their respective attorneys for additional action, and John agreed to the terms of the document and followed the terms for a period of time.

John responds to this argument with a two-pronged attack. First, he argues that the document is unenforceable because it does not reflect a “meeting of the minds” among the parties. He claims that he signed the document believing it was an “exercise” in compromise that had no legal bearing. Furthermore, he asserts that, even if the document is a contract, he was insufficiently apprised of its meaning to have validly waived his constitutional rights as a parent. To support this argument, he again refers to his and — he believes — others’ understanding that the document was generated solely as a method of helping the parties reach a compromise on visitation.

The district court concluded that there was no meeting of the minds between the parties in relation to the document given its “therapeutic” use and the parties’ understanding that it was, at least, in a state of flux as far as being a final compromise over visitation. Yet, even assuming the mediation document constitutes a contract — a point which the district court did not accept and which we view with ample skepticism — we believe it is clear that John acted with insufficient understanding to have truly waived his constitutional rights by its signing. Thus, whatever the document’s nature, it is unenforceable. See 17A Am. Jur. 2d Contracts § 247, at 250 (1991).

We have previously recognized “the concept of contractual waiver of constitutional rights in civil cases.” Messina v. Iowa Dep’t of Job Servs., 341 N.W.2d 52, 60 (Iowa 1983); see also Callender, 591 N.W.2d at 192. In so recognizing, we cited with approval a similar recognition by the United States Supreme Court, which “applied the usual [criminal context] standards requiring the waiver to be voluntary, knowingly and intelligently made” to determine whether a proper waiver had been accomplished. Messina, 341 N.W.2d at 60 (citing D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185-86, 92 S.Ct. 775, 782, 31 L.Ed.2d 124, 134 (1972)). We believe these standards permit a proper analysis of a potential contractual waiver of constitutional rights and apply them to this case and our examination of the mediation document.

As Santi, Howard, and our discussion in this case make clear, John held a constitutional parental caretaking interest when he entered into the mediation with Arnie and Lucy. Yet, the document ultimately generated made no mention of this constitutional interest and provides no evidence of a thoughtful relinquishment of it. In fact, the document itself and the testimony at trial reveal that the parties’ approach to the document was relatively informal, with little if any discussion of the legal ramifications — much less the more specific constitutional ramifications — of its signing. Indeed, it was generated in a mediation session that was not attended by counsel for either party. The mediator, when asked whether there was “any discussion about the facts that there may be underlying fundamental constitutional rights and issues” involved, explained,

A. You know what I think that — I don’t remember if that was ever mentioned or not. It — I continue to try to stay away from any legal issues. I kept saying to both parties, remember I’m not an attorney, that’s not my expertise. My expertise is kids and that’s what I would be arbitrating.

Although it is unnecessary to define the precise threshold at which John would have become sufficiently informed to have validly waived his constitutional parental rights, it is clear the threshold was not reached in this case. The document signed at the mediation is unenforceable.

Y. Conclusion.

Clearly, “[t]here is no doubt, in a broad sense, that grandparent-grandchild relationships are beneficial and should be promoted.” Howard, 661 N.W.2d at 190; see also Santi, 633 N.W.2d at 320. Yet, as we have recognized before, “such a generalization falls short of establishing the type of harm that would justify state intervention into a parental decision denying contact.” Howard, 661 N.W.2d at 190; see also Santi 633 N.W.2d at 320. Iowa Code section 598.35(3) all but fails to contemplate a harm justifying state intervention and is not narrowly tailored to advance a compelling state interest. For this reason, it is unconstitutional. Moreover, the constitutional dimensions of the parental care-taking interest require any waiver of that interest to be “voluntary, knowingly and intelligently made.” Messina, 341 N.W.2d at 60 (citing D.H. Overmyer Co., 405 U.S. at 185-86, 92 S.Ct. at 782, 31 L.Ed.2d at 134). A proper waiver was not accomplished in this case by the mediation document signed by the parties. We affirm the ruling of the district court.

AFFIRMED.

      . One significant factual difference between this case and our prior cases is the presence and role of Amie, who, by the time of the district court's ruling, was Robert and Alexis' mother by adoption. Neither party suggested Amie significantly affected the application of the legal principles surrounding the grandparent visitation statute, and we are not in-dined to further consider the effect, if any, of her adopting Robert and Alexis. Instead, we concentrate on John’s role as a parent given that it is primarily his parental caretaking interest targeted by Arnie and Lucy’s petition for grandparent visitation. See In re Marriage of Howard, 661 N.W.2d 183, 192 n. 5 (Iowa 2003).


author: LAVORATO, Chief Justice. CADY, J.

text:
    STATE of Iowa, Appellee, v. Patricia Lynn BASH, Appellant.
    No. 01-1749.
    Supreme Court of Iowa.
    Oct. 8, 2003.

      Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant State Appellate Defender, Kami M. Lang, student intern, for appellant.
    Thomas J. Miller, Attorney General, and Cristen Odell, Assistant Attorney General, for appellee.
   LAVORATO, Chief Justice.

Patricia Bash appealed from her conviction and sentence for possession of marijuana. She contended among other things that the district court erred in finding there was sufficient evidence to support her conviction of the charge. We transferred the case to the court of appeals, which affirmed. We granted the defendant’s application for further review and now hold that there was insufficient evidence to support the conviction. Accordingly, we vacate the court of appeals decision, reverse the judgment of the district court, and remand the case for dismissal.

I. Background Facts and Proceedings.

On January 17, 2001, six Spirit Lake police officers executed a search warrant at an apartment shared by the defendant, her husband Kevin, and her three sons. The search warrant indicated that the officers were looking for, among other things, controlled substances and a safety deposit box.

The defendant, her husband, and their son Ty were home at the time the officers entered the apartment. The officers immediately arrested Kevin on an outstanding warrant and removed him from the residence.

One of the officers read the search warrant to the defendant whereupon, according to the officer, the defendant said she could “show [him] where the stuff is.” The officer testified that he believed the defendant was referring to “[a]ny illegal drugs or contraband that may be in the residence.” After reading the defendant her Miranda rights, the officer followed the defendant into the master bedroom and she told him, “it’s on his nightstand in a cardboard box, that it’s Kevin’s stuff, that his bong ... was sitting on the floor next to the bed.”

The defendant’s version was somewhat different from the officer’s testimony. She testified she heard officers talking about a lock box they were looking for in the residence. When officers asked her if there was “anything in the house they should know about,” she responded, “If there is anything here, it would be on Kevin’s side of the bed.” She pointed towards his nightstand which was on the left side of the bed. The officer then arrested her and read her Miranda rights to her.

On Kevin’s nightstand the officers found a cardboard box bearing the word “Frís-eos.” Inside the box, they found a green plant material later identified as 1.37 grams of marijuana. The defendant testified she did not know what was in the box until after the officers opened it. However, she admitted that she knew there had been marijuana in the house, in the box, in the past.

The defendant also directed the officers to the lock box, which contained a marriage certificate, birth certificates, insurance papers, and the key to the box.

The State charged the defendant with possession of a controlled substance (marijuana), in violation of Iowa Code section 124.401(5) (Supp.1999). Later, the defendant moved to dismiss, contending the State would be unable to prove she exercised dominion and control over the controlled substance based on our decision in State v. Atkinson, 620 N.W.2d 1 (Iowa 2000). Following the State’s resistance, the district court denied the defendant’s motion.

The parties tried the case to a jury. At the close of the State’s case and again at the close of all the evidence, the defendant moved for judgment of acquittal, contending, as she did in her motion to dismiss, that the State had failed to prove she had dominion and control over the marijuana. The district court denied the motion for judgment of acquittal following which the jury found the defendant guilty as charged. Later, the district court denied the defendant’s motion in arrest of judgment and motion for new trial.

The district court sentenced the defendant to a thirty-day suspended sentence with credit for time served and imposed a $250 fine and a $75 surcharge.

Following the defendant’s appeal, we transferred the case to the court of appeals, which affirmed. We granted the defendant’s application for further review.

II.Issue.

Among other things, the defendant contends the district court erred in finding there was sufficient evidence to support her conviction for possession of a controlled substance. Because we find this issue dispositive, we confine our discussion to it.

III. Scope of Review.

Recently, we explained the scope of review for challenges to the sufficiency of the evidence supporting a guilty verdict:

We review challenges to the sufficiency of the evidence supporting a guilty verdict for correction of errors at law. We will uphold a verdict if substantial record evidence supports it. Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt.
We review the evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the evidence in the record, not just the evidence that supports the verdict.
The State must prove every fact necessary to constitute the crime with which the defendant is charged. The evidence must raise a fair inference of guilt and do more than create speculation, suspicion, or conjecture.

State v. Webb, 648 N.W.2d 72, 75-76 (Iowa 2002) (citations omitted).

IV. Sufficiency of the Evidence.

Unlawful possession of a controlled substance requires proof that the defendant: (1) exercised dominion and control over the contraband, (2) had knowledge of its presence, and (3) had knowledge that the material was a controlled substance. State v. Reeves, 209 N.W.2d 18, 21 (Iowa 1973). Proof of opportunity of access to the place where contraband is found will not, without more, support a finding of unlawful possession. Id. at 22.

In her motion for judgment of acquittal, the defendant argued:

We know from the State v. Atkinson case and other cases of a similar nature on constructive possession that mere proximity to contraband is insufficient to meet the State’s burden.
Here, the facts are very similar [to those in Atkinson ]. We have the premises shared by these two people, the married persons, and contraband found in that location. It is undisputed that it was Kevin Bash that was the target of their investigation, undisputed that these were Kevin Bash’s effects, not [the defendant’s] effects, wherein the contraband was found.
There is no evidence that the State has brought forward to show that my client had any dominion or control, any ownership or proprietary interest in the contraband that was found, and we cannot infer that dominion and control where the defendant is not in the exclusive possession of the premises. These were premises shared by her and her husband. And the State then has to come forward with some evidence that shows that she had that dominion and control. They have not provided any evidence of the dominion and control element as required.

As in the district court, the defendant’s sufficiency-of-the-evidence challenge here is to the first element of the crime charged: dominion and control. Possession can be either actual or constructive. State v. Maghee, 573 N.W.2d 1, 10 (Iowa 1997). Actual possession occurs when the controlled substance is found on the defendant’s person. Atkinson, 620 N.W.2d at 3. Constructive possession occurs when the defendant has knowledge of the presence of the controlled substance and has the authority or right to maintain control of it. Webb, 648 N.W.2d at 81. It is undisputed here that the defendant did not have actual possession of the marijuana because the officers did not find the controlled substance on her person. We are left with whether the defendant had constructive possession.

At the time of this incident, it is undisputed that the premises were shared by the defendant, her husband, and their children. Under these circumstances, knowledge of the presence of the marijuana and the authority or right to maintain control of it, that is, constructive possession, could not be inferred by the jury from the defendant’s joint control of the premises, but had to be established by other proof. Webb, 648 N.W.2d at 79. Such proof could include incriminating statements made by the defendant, incriminating actions of the defendant upon the police’s discovery of the controlled substance among or near the defendant’s personal belongings, the defendant’s fingerprints on the packages containing the controlled substance, and any other circumstances linking the defendant to the controlled substance. Id.

In her motion for judgment of acquittal, the defendant’s sufficiency-of-the-evidence challenge did not include her lack of knowledge of the presence of the marijuana. Rather, as her argument on the motion indicates, such challenge only included the authority or right to maintain control of the marijuana. On this point, the State relies heavily on the following testimony from the defendant:

Q. Now, could you have — was there any legal reason that would prevent you from taking that box and disposing of it? A. It wasn’t mine.
Q. I understand that. But is there— it’s proper that you generally regard it as your husband’s? A. Correct.
Q. But you shared that apartment with him? A. Correct.
Q. Now, is there any legal reason why you could not have picked up that box and taken it and removed it from the house. A. It was not mine.
Q. ... Could you have taken the contents of that box and flushed it down the toilet? A. No. It was not mine.
Q. Okay. Physically, would you have been able to do that? A. Physically, yes.

The State argues that the defendant’s admission that she could physically have flushed the marijuana down the toilet is proof that she had the authority or right to maintain control of the marijuana. This position is at odds with what we said in Atkinson:

While it seems anomalous to look at a defendant’s “right” to control illegal drugs in order to establish possession, that concept basically distinguishes a defendant’s raw physical ability to exercise control over contraband simply because of the defendant’s proximity to it and the type of rights that can be considered constructive possession.

Atkinson, 620 N.W.2d at 5 (emphasis added).

Thus, the authority or right to maintain control includes something more than the “raw physical ability” to exercise control over the controlled substance. The defendant must have some proprietary interest or an immediate right to control or reduce the controlled substance to the defendant’s possession. See id. No such proof was produced here. The State seems to concede, as it must, that the box containing marijuana was located on the husband’s side of the bed with his personal effects. Additionally, there was no evidence that the defendant shared any ownership of the box or the marijuana in it or had any right to control either item.

Accordingly, we conclude the State failed to prove the defendant had dominion and control over the marijuana and thus failed to prove constructive possession of it. We therefore vacate the court of appeals decision, reverse the judgment of the district court, and remand the case for dismissal.

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

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

CADY, J.

(dissenting).

I respectfully dissent. With each constructive possession case since State v. McDowell, 622 N.W.2d 305 (Iowa 2001), I have grown increasingly concerned that we have essentially transformed the absence of a judicial inference of possession into a legal standard and, in the process, created an erroneous, unfair, and unworkable test for assessing the sufficiency of evidence to support a finding of constructive possession of a controlled substance. This case now convinces me that we have done so, and causes me to depart from the majority.

State v. Reeves is our seminal case in the area of constructive possession of illegal contraband. 209 N.W.2d 18. In Reeves, we said constructive possession “occurs when the accused maintains control or a right to control the narcotic.” Id. at 22. We then specifically recognized that constructive possession may be inferred “when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to” the dominion and control of the accused or the “joint dominion and control of the accused and another.” Id. We emphasized that when illegal drugs are found “in the exclusive possession of the accused,” knowledge is inferred and no further proof of knowledge is required to be produced by the state. Id. at 23. On the other hand, when the accused is in joint possession of the premises or area where the drugs are found, knowledge is not inferred, “but must be established by proof.” Id. Finally, we said this proof might come from evidence showing knowledge, incriminating statements, or circumstances from which a jury may infer knowledge. Id.

Despite some of our cases that followed, Reeves remains our polestar in constructive possession cases. However, in our persistent vigilance to protect innocent bystanders from being convicted of a drug possession charge simply because they were in the wrong place at the wrong time, we have lost contact with those principles that guide our jury process and we have established legal requirements to support a possession conviction unknown in other areas of the law. See State v. Simpson, 528 N.W.2d 627, 636 (Iowa 1995) (Ternus, J., dissenting) (While “[w]e want to convict persons guilty of drug offenses even though they are not caught ‘red handed’ with the drugs on their person” we want also “to protect innocent bystanders from being convicted for drug offenses merely because they were in the wrong place at the wrong time.” (Citations omitted.)).

In recent years, we have, perhaps not musingly, elevated the judicially created inference, discussed in Reeves into a legal standard for determining the sufficiency of evidence. Consequently, if the facts of a constructive possession case do not fit the Reeves judicial inference, we do not permit the fact finder to draw its own inferences based on its own mental processes and experiences from all the evidence in the case. Instead, we insist upon some form of direct or concrete evidence of possession such as incriminating statements, incriminating actions, or fingerprints and — with this case — an additional legal requirement that a possessor maintain a proprietary interest or rights in the contraband.

The majority acknowledges, as do our recent cases, that the lack of evidence to support a judicial inference of constructive possession in a drug possession case only means the state must produce other evidence of constructive possession. See State v. Cashen, 666 N.W.2d 566, 571 (Iowa 2003). Yet, the majority has applied this principle to preclude the fact finder from drawing rational inferences from the other evidence in the case. A similar application was made in Cashen, where we said evidence that the defendant knew marijuana was in the car, knew it belonged to his girlfriend (so as to make it more likely he had access to it or the ability to control it), possessed rolling papers and a fighter on his person, and was sitting in the immediate area where a baggie of marijuana was found in the car, was insufficient as a matter of law to support a jury verdict of constructive possession. Id. at 571-73. Instead, we concluded the “only fact relevant” to show “control and dominion” was “proximity to the marijuana,” but “possession cannot rest on mere proximity.” Id. at 572. The other evidence in the case was irrelevant, apparently, because it was only circumstantial and did not fit within the judicial inference.

The error we have committed since McDowell can be traced to our failure to distinguish standardized court-created inferences based on prior judicial decisions finding proof of one fact to be sufficient to infer proof of an element of the crime from those common rational inferences from evidence used by fact finders in every case based on their mental processes and experiences. The lack of a judicially created inference in a case does not prohibit the jury from drawing inferences from other facts. It has always been a jury function in our system of jurisprudence to determine the reasonable inferences to be drawn from the evidence. See Newell v. Newell’s Estate, 198 Iowa 710, 720-21, 200 N.W. 238, 242 (1924). Additionally, the law does not give greater importance to direct evidence as opposed to circumstantial evidence. Yet, in this particular area of the law and in this area only, we have taken from the fact finder the ability to use its own judgment to draw inferences of constructive possession from evidence in the case.

Instead of allowing the jury to draw inferences and reach conclusions from the evidence, the majority, to compound matters, now finds it necessary to introduce a new rule of limitation. This new rule requires an accused to have “some proprietary interest ... or an immediate right to control or reduce the controlled substance to the defendant’s possession” in those cases where the illegal drug is not exclusively and immediately accessible to the defendant. This standard has little relationship to the original judicial inference from which it was derived. Constructive possession is not about proprietary interest in property, but control. The effect of this rule is to prevent a jury from weighing and considering all of the evidence in the case, as the fact finder is permitted to do in all other cases, to draw reasonable and rational inferences of possession.

I could perhaps agree with the majority that constructive possession was not established in this case based on the mere fact that the box of marijuana and the bong was found near the husband’s side of the bed in the bedroom the defendant shared with her husband. This alone may not amount to substantial evidence of control or the right to maintain control of the marijuana. However, instead of deciding the case on the evidence, the majority injects a new legal standard that in most cases will severely limit the concept of constructive possession.

Our law in this area has created murky jurisprudence. We should treat constructive possession cases like any other criminal case, and permit the jury to separate the innocent bystander from the guilty perpetrator under the same standards used in other criminal cases.