author: LARSON, Justice.

text:
    STATE of Iowa, Appellee, v. Roosevelt SCOTT, Appellant.
    No. 99-0012.
    Supreme Court of Iowa.
    Nov. 16, 2000.

      Linda Del Gallo, State Appellate Defender, and John P. Messina, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Thomas S. Mullin, County Attorney, and James J. Katcher, Assistant County Attorney, for appellee.
   LARSON, Justice.

Roosevelt Scott was found guilty of possession of cocaine with intent to deliver as a habitual offender in violation of Iowa Code sections 124.401(l)(e)(2) and 902.8 (1997); a tax stamp violation as a habitual offender in violation of Iowa Code sections 453B.1, 453B.12, and 902.8; and keeping a vehicle for using controlled substances, in violation of Iowa Code sections 124.402(l)(e) and 124.401(2)(a). The court of appeals affirmed the possession and drug tax stamp violations but reversed the conviction for keeping a vehicle for possessing or selling controlled substances. Both Scott and the State sought further review, which we granted. We affirm the decision of the court of appeals in part and vacate it in part, reverse the judgment of the district court, and remand.

I. Facts and Prior Proceedings.

On August 4, 1998, at approximately 11:50 p.m., state trooper David Earl was driving behind Roosevelt Scott’s car near Sioux City. He noticed the car’s license validation sticker was partially obscured by a license plate frame. When the trooper pulled alongside the car, he noticed the windows were excessively tinted and Scott was not wearing a seat belt. He pulled the car over and informed Scott why he had stopped him. He asked Scott to leave the vehicle and accompany him to the patrol car while having the passenger, Anna-bell Sustaita, remain in Scott’s vehicle. As they walked to the patrol car, the trooper noticed a utility knife in the rear pocket of Scott’s pants, which he perceived as a potential “lethal cutting device.” The trooper took the knife from Scott’s pocket. In doing so, he noticed an object appearing to be a digital scale beside the utility knife in Scott’s pocket. He took that out too. The trooper then patted Scott down for weapons. He found no weapons, but he did find large rolls of cash in Scott’s front pockets totaling over $6000. The trooper took Scott to the patrol car. There, he removed the scale from its leather pouch, looked at it, and noticed it measured in grams instead of ounces, an indication to him it was used for drug dealing. He also noticed the weighing surface smelled like marijuana, and he found a white powder residue on the scale. The trooper asked Scott what was in Scott’s vehicle and whether he would find anything. Scott told him he would not. The trooper then issued a citation for failure to properly display a validation sticker and requested permission to search the car. Scott refused. The trooper went to the passenger side of Scott’s vehicle and asked Sustaita to get out. He patted her down, but found no weapons or illegal substances on her. He then proceeded to search the vehicle, finding a large black purse underneath the passenger seat. Sustaita identified it as hers. With Sustaita’s permission, the trooper searched the purse and found two plastic bags containing cocaine.

Scott and Sustaita were handcuffed. A Sioux City police officer, who had come with a narcotics dog, rolled up the car’s windows in order to contain any narcotics scent for the dog. As the officer was rolling up a window, his knee struck a flashlight between the seats. The mirrored portion of the flashlight fell off, revealing a large quantity of cocaine. In addition to the drugs, $6400 in cash, the utility knife, and the digital scale, the officers also seized a cellular telephone and three boxes of .44 caliber ammunition from the car’s trunk.

Scott and Sustaita were charged with two counts of possession of cocaine with intent to deliver and two counts of drug tax stamp violations. Scott was also charged with keeping a vehicle for possessing or selling controlled substances. The ease against Sustaita was eventually severed for separate trial and is not directly involved on this appeal.

On September 30, 1998, Scott filed a motion to suppress all evidence seized during the “warrantless search of [Scott’s] vehicle by Iowa State trooper David Earl.” An evidentiary hearing was held on October 28, 1998, and the district court denied Scott’s motion on the basis the search was legal as a search incident to citation, based on State v. Meyer, 543 N.W.2d 876, 878 (Iowa 1996) (holding officers may search incident to citation without arrest).

The matter proceeded to trial. At the close of the State’s case and again at the close of all evidence, Scott unsuccessfully moved for a directed verdict and judgment of acquittal. The jury found Scott guilty of one count of possessing cocaine with intent to deliver, a failure to affix drug tax stamps and keeping a vehicle for possessing or selling controlled substances.

Scott filed a motion in arrest of judgment and a motion for new trial. The new trial motion again raised the search issue, pointing out that since the hearing on the motion to suppress evidence, the statute on which Meyer was based was held unconstitutional as applied. See Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998) (holding search incident to citation in lieu of arrest denied defendant Fourth Amendment rights). The court denied the motion for new trial, and sentence was entered.

II. The Issues.

The issues raised by the appeal are (1) whether the district court erred in admitting evidence of the acquittal of Sustaita, Scott’s passenger, in a separate trial; (2) the legality of the searches; and (3) whether Scott received ineffective assistance of counsel on the charge of keeping a vehicle for possessing or selling controlled substances.

III. Evidence of Passenger’s Acquittal.

Sustaita was tried separately from Scott and acquitted. The State called her as a witness in Scott’s trial. She testified that the drugs in the car, including those in her purse, were apparently put there by Scott because they were not hers. She was then cross-examined by Scott’s lawyer, who attempted to cast doubt on her testimony that the drugs were Scott’s. The gist of the cross-examination was to show that Sustaita was not being truthful. Apparently in an attempt to bolster Sustaita’s credibility, the State conducted this redirect examination of her:

[PROSECUTOR]: Annabell Sustaita, you stated that you were tried by a jury on November 6; is that right?
[THE WITNESS]: Yes.
[PROSECUTOR]: mat was the outcome of your trial?
MR. ROEHRICH [defense counsel]: Objection. Irrelevant, and I renew my previous objections.
THE COURT: She may answer.
THE WITNESS: mat do you mean? Have I got found guilty or not guilty?
[PROSECUTOR]: Yes.
THE WITNESS: Yeah, I got found not guilty.
[PROSECUTOR]: You were charged with four counts that Mr. Scott is also charged with; is that correct?
[THE WITNESS]: Yes.
[PROSECUTOR]: Were you found not guilty on all four of those counts?
[THE WITNESS]: Yes, not guilty.

Scott complains that his case boiled down to his word against Sustaita’s, and evidence of her acquittal could have imper-missibly influenced the jury by informing it that the jury in Sustaita’s case had believed her version of the events. The State responds in three ways: (1) Scott failed to preserve error by a proper objection; (2) the admission of the evidence was not error; and (3) even if it were error, it was not prejudicial.

The State contends the defendant’s objection, that the outcome of Sustaita’s trial was “irrelevant,” was insufficient to preserve error; the objection should have been that the testimony was offered “for an impermissible purpose.” The State contends the evidence of Sustaita’s acquittal was offered only on the issue of her credibility. The relevancy objection, according to the State, was an insufficient objection to a question challenging credibility of a witness.

Generally evidence of another’s conviction or acquittal is inadmissible. 23 C.J.S. Criminal Law § 996, at 261 (1989) (footnote omitted); see also State v. Carter, 847 S.W.2d 941, 947 (Mo.Ct.App.1993) (“Evidence of either the conviction or acquittal of one jointly accused with a defendant is inadmissible as substantive evidence of defendant’s guilt or innocence.”); Adams v. State, 581 S.W.2d 626, 627-28 (Tex.Crim.App.1976) (general rule is that it is not permissible to show, for any purpose, that another jointly or separately indicted for same offense has been convicted or acquitted).

Evidence of acquittal of one jointly indicted with accused is not admissible on behalf of accused as tending to establish that he also is innocent. Likewise, it is not competent on the trial of one charged with a crime to show that another, separately charged with the same offense, has been acquitted.

If the issue is, as the State argues, one of credibility, it is suggested by one authority that a relevancy objection is not sufficient:

Although evidence inadmissible under [Federal] Rule [of Evidence] 404(a) [character evidence] has sometimes been thought of as “irrelevant,” that objection would probably lack sufficient specificity in many cases. It would therefore be better to object to the evidence on the ground that it is “improper proof of character,” citing Rule 404 or 405 as the case may be.

22 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5269, at 630-31 (1978) (footnotes omitted).

On the other hand, a case specifically addressing the issue raised in this case held that a codefendant’s guilt or innocence is “not relevant” on the issue of the defendant’s guilt or innocence, suggesting a relevancy objection would be sufficient. See State v. Salazar, 173 Ariz. 399, 410, 844 P.2d 566, 577 (1992).

Iowa has adopted a broad view of relevancy, which includes the concept of materiality. Iowa R. Evid. 401 (committee comment). Materiality, in turn, “ordinarily relates to the pertinence of offered evidence to the issues in dispute or to the issue of credibility.” Id. (emphasis added) (quoting State v. Clay, 213 N.W.2d 473, 477 (Iowa 1973)). Whatever the basis for the State’s inquiry into the prior jury verdict — to bolster the witness’s credibility or the substantive evidence of the defendant’s guilt — we believe the defendant’s relevancy objection was sufficient to raise the issue of the inadmissibility of the evidence. The evidence of Sustaita’s acquittal was erroneously admitted. See Adams v. State, 531 S.W.2d 626 (Tex.Crim.App.1976) (codefendant’s acquittal- not admissible upon the issue of the credibility of the arresting officers’ testimony).

We reject the State’s alternative argument that the evidence was so strong against this defendant that the introduction of evidence of Sustaita’s acquittal was harmless error. The strength of the State’s case depended to a large extent on whether a jury would believe Sustaita, and the evidence of Sustaita’s acquittal logically could have skewed that finding.

We believe the likely impact of this evidence was so substantial its admission cannot be approved. We therefore reverse and remand for a new trial.

IV. The Evidence Rulings.

We address the search issues because they will likely arise in any new trial. Scott moved to suppress the fruits of his roadside search on the ground the stop was illegal. He did not, however, argue the subsequent searches lacked probable cause. The district court ruled the initial stop was valid, based on the officer’s observation of the obscured validation sticker, the seat belt violation, and the excessively dark windows. The officer had issued a citation, and according to the court, the search was valid as incident to the citation. The court cited Meyer, 543 N.W.2d at 878 (holding citation-based search valid under Iowa Code section 805.1(4) (1995)). The district court stated:

Under Iowa law a person known to have violated a traffic law is subject to a full custodial arrest and the arresting officer has the same authority to search the vehicle incident to a citation as he would to search the vehicle incident to arrest.

This statement of the law, however, turned out not to be correct; the United States Supreme Court in Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), held a search incident to citation, without an arrest, violated the defendant’s Fourth Amendment rights.

In his new-trial motion, the defendant raised the constitutionality question because by that time Knowles v. Iowa had been decided by the Supreme Court. The district court denied the motion for new trial, ruling that the officers acted properly in searching Scott and his car under the law as it then existed. The court aptly stated:

There’s nothing to show that the officer should have known that that law was unconstitutional. When five justices of the Iowa Supreme Court say that a law is constitutional, we can hardly expect a highway patrolman to know that the law was unconstitutional, even though some months later the United States Supreme Court unanimously said that the law was unconstitutional.

The court continued:

In this situation not only should the officer not have been expected to question the judgment of the legislature[ ] that passed the law, but the officer should not have been expected to question the judgment of the majority of the Iowa Supreme Court, which held that the law was constitutional.

Despite the fact that Knoiules had been decided by the time the court ruled on the motion for new trial, the court denied the motion believing a “good-faith exception” to the exclusionary rule should apply as recognized in Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364 (1987).

As the district court noted, the Supreme Court case of Illinois v. Krull is very close to the facts of the present case. In Krull the Supreme Court held that, if officers had relied in objectively good faith on a statute authorizing a search, the fruits of the search were admissible even though the statute was later held to be unconstitutional. After the district court ruled in this case, however, we rejected the good-faith exception under our state constitution. State v. Cline, 617 N.W.2d 277, 292-93 (Iowa 2000). In doing so, we declined to follow the reasoning of Krull and United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 3420, 82 L.Ed.2d 677, 698 (1984) (recognizing a good-faith exception in warrant case under Federal Constitution).

We apply the rule of Cline in this case even though the Iowa Constitution was not specifically mentioned in the motion to suppress. The present case illustrates one of the bases for Cline’s rejection of a good-faith exception to the exclusionary rule: protecting the integrity of the judiciary. See Cline, 617 N.W.2d at 289-90. In the present case, that concern is particularly appropriate because a majority of this court in Knowles clearly influenced the course of conduct of officers, defense lawyers, and the courts themselves in cases involving searches incident to citation. A defendant who has a valid objection to such a search without probable cause or arrest should not be deprived of an opportunity to challenge the search. On the other hand, we are hesitant to characterize defense counsel as ineffective for failing to assert an argument that five members of this court had rejected. That would be grossly hypocritical.

We hold the searches and seizures cannot be upheld on a good-faith basis, and on retrial, the defendant shall have an opportunity to challenge them.

V. The Conviction Under Iowa Code Section 124.402(l)(e).

The court of appeals reversed Scott’s conviction for keeping a vehicle for possessing or distributing controlled substances in violation of Iowa Code section 124.402(l)(e). The State did not present evidence that Scott’s car was used for the “substantial purpose” of drug activity, and the court of appeals held Scott’s counsel was ineffective in failing to request an instruction embodying that concept. See State v. Westeen, 591 N.W.2d 203, 209 (Iowa 1999) (holding that keeping and maintaining a premises for drug activity under the statute requires some continuity and that an isolated incident would be insufficient). Id. at 209-11. Although Westeen was decided after the trial of Scott’s ease, the court of appeals concluded his trial counsel was ineffective in failing to raise this issue in light of the decisions of other states, under similar statutes, embodying the rule adopted in Westeen. We agree with that holding and affirm the court of appeals reversal of the conviction under Iowa Code section 124.402(l)(e) and its order that the charge be dismissed.

In summary, we affirm the ruling of the court of appeals reversing the conviction under Iowa Code section 124.402(l)(e) and its order for dismissal of that count. We vacate the balance of the court of appeals decision and reverse the judgment of the district court. We remand for a new trial.

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART; JUDGMENT OF DISTRICT COURT REVERSED; CASE REMANDED.

      . Iowa Code § 805.1(4) provides:
      The issuance of a citation in lieu of arrest or in lieu of continued custody does not affect the officer's authority to conduct an otherwise lawful search. The issuance of a citation in lieu of arrest shall be deemed an arrest for the purpose of the speedy indictment requirements of R.Cr.P. section 27, subsection 2, paragraph "a," la. Ct. Rules 3d ed.


source: Caselaw Access Project

author: NEUMAN, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Jose Dario RUESGA, Appellant.
    No. 98-2071.
    Supreme Court of Iowa.
    Nov. 16, 2000.

      Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, John P. Sarcone, County Attorney, and Nan Horvat and Melodee Hanes, Assistant County Attorneys, for appellee.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).

   NEUMAN, Justice.

Defendant, Jose Dario Ruesga, was convicted in 1992 of felony child endangerment and willful injury for unspeakable child abuse inflicted on four-year-old Jonathan Waller. Jonathan survived in a fragile state for nearly six more years but, upon his death, the State charged Ruesga with first-degree murder. Ruesga now seeks to reverse the conviction entered upon the jury’s guilty verdict. He claims entitlement to a rule at common law that prevented the government from charging a person with homicide unless the victim died within a year and a day from when the fatal blows were struck. The district court found no basis for application of this “year and a day” rule in Iowa, and neither do we. Nor are we persuaded that Rues-ga is entitled to relief on any other ground urged for reversal. We therefore affirm the judgment and sentence of the district court.

On March 5, 1992, paramedics were called to the home of Michelle and David Crouse where they observed Ruesga cradling an unconscious Jonathan Waller. The paramedics were told the child had fallen. Their examination revealed severe and extensive bruising on nearly every part of the child’s body. Jonathan was rushed to a hospital where doctors performed emergency surgery to relieve swelling caused by a severe head injury. Despite their efforts, Jonathan lost the use of nearly half his brain. Doctors also discovered that the child had a broken left arm, a torn liver, a burned right hand and what appeared to be an “R” carved into the flesh of his buttock. Ruesga, who was Jonathan’s mother’s live-in boyfriend, was ultimately convicted of three counts of child endangerment and one count of willful injury.

Jonathan, meanwhile, spent over 100 days in the hospital before being released to the custody of his aunt. Over the next six years Jonathan required constant care to meet his basic needs. He endured repeated hospitalizations for complications, such as a seizure disorder, arising from his injuries. He finally succumbed to pneumonia on April 7, 1998, secondary to the brain injury inflicted by Ruesga in 1992.

The State charged Ruesga with first-degree murder in violation of Iowa Code sections 707.1 and 707.2 (1997). Ruesga twice moved to dismiss the indictment. He first claimed that a prosecution for murder was barred by the common law “year and a day” rule. The district court overruled the motion. Ruesga then moved to dismiss on the ground that his prior conviction for felony child endangerment prevented the State from prosecuting him for felony murder, based on the underlying crime of felony child endangerment, without violating the Double Jeopardy Clause. The district court likewise overruled this motion and the case proceeded to trial. A jury found Ruesga guilty as charged and this appeal followed.

I. Scope of Review.

To the extent Ruesga challenges the district court’s application of the common law and interpretation of criminal statutes, our review is for the correction of errors at law. State v. Eickelberg, 574 N.W.2d 1, 3 (Iowa 1997). Ruesga’s double jeopardy and ineffectiveness of counsel claims, being constitutional in nature, require a de novo review of the record. State v. Predka, 555 N.W.2d 202, 204 (Iowa 1996).

II. Issues on Appeal.

A Common law rule of “year and a day.” Ruesga argues the district court erred by rejecting his common law “year and a day” defense to murder. As will be more fully explained, the rule creates an irrebuttable presumption that after one year and one day from the infliction of an injury, the injury may not — as a matter of law — furnish the basis for a homicide prosecution. On appeal Ruesga concedes the rule forms no part of the statutory elements of the crime of murder; neither does he claim it is a procedural rule. He simply argues the rule constitutes an absolute defense to murder. The State counters that the rule has never been — nor is it currently — recognized at common law in Iowa, either as an element of the offense or as a potential defense. For the reasons that follow, we agree.

Both parties concede that “a year and a day” formed a recognized part of the English common law dating back to the thirteenth century. See State v. Rogers, 992 S.W.2d 393, 396 (Tenn.1999). During the late nineteenth century the United States Supreme Court recognized and applied the rule in federal prosecutions for murder, noting the rule’s general applicability except “in jurisdictions where it may be otherwise prescribed by statute.” Louisville, Evansville & St. Louis R.R. v. Clarke, 152 U.S. 230, 239, 14 S.Ct. 579, 581, 38 L.Ed. 422, 424 (1894); Ball v. United States, 140 U.S. 118, 133, 11 S.Ct. 761, 766, 35 L.Ed. 377, 384 (1891). The rule derives from the primitive nature of medical arts as they existed in the thirteenth century. Rogers, 992 S.W.2d at 396. When a lengthy lapse of time occurred between the act allegedly causing injury and death, proof of causation was a formidable and speculative task. Id. Rationale for the doctrine also stemmed from early procedural rules that prevented witnesses with personal knowledge from testifying, leaving jurors to determine causation issues on their own. Id. at 397. Finally, the “year and a day” rule served to ameliorate the harsh results of a death penalty that was routinely imposed for all degrees of homicide. Id.

At least one federal court, feeling bound by precedent established in Ball and Louisville, Evansville & St. Louis R.R., has quite recently acknowledged the continuing vitality of the rule in federal prosecutions. United States v. Chase, 18 F.3d 1166, 1171-73 (4th Cir.1994). The great majority of states, however, have abrogated the rule, judicially or legislatively. Ten courts, finding the rule outdated in light of medical advances that now prolong life far beyond one year and one day from when an injury is inflicted, have judicially abrogated the rule, prospectively or retroactively, depending on whether the rule is viewed as a substantive element of murder or a rule of evidence. See, e.g., United States v. Jackson, 528 A.2d 1211, 1220 (D.C.1987) (prospectively abolishing judicially-created rule because rationale no longer applicable); Jones v. Dugger, 518 So.2d 295, 298 (Fla.Dist.Ct.App.1987) (finding Florida had not previously dealt with rule, but followed other courts in abrogating it because reasoning no longer valid); Commonwealth v. Lewis, 381 Mass. 411, 409 N.E.2d 771, 775 (1980) (retrospectively abrogating rule); People v. Stevenson, 416 Mich. 383, 331 N.W.2d 143, 147, 149 (1982) (finding court has power to modify or change common law when change is required, prospectively abrogating rule); State v. Young, 77 N.J. 245, 390 A.2d 556, 560-61 (1978) (prospectively abrogating rule); State v. Gabehart, 114 N.M. 183, 836 P.2d 102, 105 (Ct.App.1992) (abrogating rule as a common law defense because its justifications no longer valid); State v. Vance, 328 N.C. 613, 403 S.E.2d 495, 499 (1991) (rule, applied in early North Carolina case law, abolished prospectively as it had become obsolete under N.C. Gen.Stat. § 4-1 (1986)); Commonwealth v. Ladd, 402 Pa. 164, 166 A.2d 501, 506-07 (1960) (holding that “a year and a day” is a common law rule of evidence which court could retrospectively abrogate); State v. Pine, 524 A.2d 1104, 1107 (R.I.1987) (finding that although rule had been specifically adopted by legislature as part of state’s common law, its application was originally judicial and court could prospectively abrogate it); Rogers, 992 S.W.2d at 401 (holding that court had special duty to abrogate judicially-created rule no longer supported by underlying rationale).

Four state courts have held that legislative passage of comprehensive state criminal codes has effectively abolished common law crimes, including the concept of “a year and a day.” See State v. Cross, 260 Ga. 845, 401 S.E.2d 510, 511 (1991); People v. Carrillo, 164 Ill.2d 144, 207 Ill.Dec. 16, 646 N.E.2d 582, 585 (1995); People v. Brengard, 265 N.Y. 100, 191 N.E. 850, 853 (1934); State v. Hudson, 56 Or.App. 462, 642 P.2d 331, 332-33 (1982). Only two states have upheld “a year and a day” as an ongoing part of their criminal codes. In State v. Minster, 302 Md. 240, 486 A.2d 1197, 1199-200 (1985), the Maryland court deferred to the legislature, which later abolished the rule. The Oklahoma Criminal Court of Appeals, ruling in a 1959 case,

likewise deferred to legislative wisdom on the question. Elliott v. Mills, 335 P.2d 1104, 1113 (Okla.Crim.App.1959).

We are unaware of any reported decisions in Iowa that have applied, or even discussed, the common law rule urged upon us by Ruesga. The rule was, however, a part of Iowa’s statutory law for a brief period. The 1843 Code of the Territory of Iowa, chapter 49, section 4, stated: “In order to make the killing murder, it is required that the person injured die within a year and a day after the stroke received or the cause of death administered .... ” Significantly, neither the Revised Code of 1860 nor any subsequent Code has included this temporal element in the definition of murder. When a new law does not contain language included in a previous version, a change in the law is presumed. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). And, by statute, “[a] public offense is that which is prohibited by statute and is punishable by fine or imprisonment.” Iowa Code § 701.2. There are no common-law crimes in Iowa. State v. Sylvester, 516 N.W.2d 845, 850 (Iowa 1994).

Ruesga seeks to circumvent the obvious conclusion that the rule, once codified, has long since been repealed by our legislature. He claims that notwithstanding repeal of the rule as an element of the offense of murder, the rule nevertheless retains its vitality, under the common law, as a complete defense to prosecution. We reject this attempt to revive the rule in the guise of a defense. Its purpose, from the defendant’s perspective, remains unchanged: to arbitrarily limit the causation inquiry where a wound does not prove, in Ruesga’s words, “speedily fatal.”

Given the absence of proof that the defense has ever before been recognized as part of Iowa’s common law, now would seem an unlikely time to consider it. Onee-fatal injuries are now readily treatable, thanks to advancements in modern medicine. Medical experts answer questions of causation with precision. Just such medical advances extended the life of Jonathan Waller. And modern' medical expertise indisputably connected the brain injury inflicted by Ruesga in 1992 with the child’s death by pneumonia in 1998. As other courts have wisely recognized, it would be the height of injustice to permit an assailant to escape punishment based on a fortuitous" combination of medical marvel and archaic rule. See, e.g., Jackson, 528 A.2d at 1220 (“Surely, the dictates of justice and public policy favor a removal of a ‘capricious’ obstacle to a prosecution for murder where the victim died fourteen months after having his brains blown out by a gunshot to the rear of his head which rendered him a paraplegic.”); Gabehart, 836 P.2d at 105 (“[I]t would be incongruous if developments in medical science that allow a victim’s life to be prolonged were permitted to be used to bar prosecution of an assailant....”).

In short, the year and a day rule — if it ever existed at common law in Iowa — was legislatively abrogated in 1860. Given the State’s undiminished duty to prove causation beyond a reasonable doubt in every prosecution for murder, we find no basis in justice or reason to accept Ruesga’s claim that some remnant of the common law rale remains. The district court correctly rejected Ruesga’s arguments to the contrary. No ground for reversal appears.

B. Double Jeopardy and Merger. Ruesga also moved to dismiss on the ground the State violated his constitutional right to be free from double jeopardy when it pursued this prosecution for first-degree murder after he had already been convicted for felony child endangerment arising from the same incident. His argument rests on a claim that felony child endangerment is a necessarily included lesser offense of felony murder. In the alternative he claims entitlement to merger of the sentences for the two convictions under Iowa Code section 701.9. The district court rejected these contentions and, we think, rightly so.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, applicable to the states under the Fourteenth Amendment, protects defendants from prosecution for the same offense after conviction or acquittal, and against multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187, 194 (1977). To determine whether an offense constitutes the “same offense” for double jeopardy purposes, courts apply the familiar “legal elements test”:

[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not....

Id. at 166, 97 S.Ct. at 2225, 53 L.Ed.2d at 194 (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932)).

Ruesga argues that his current conviction for first-degree murder cannot pass constitutional muster because it rests on proof of his prior conviction for felony child endangerment. See Iowa Code § 726.6(2) (when serious injury results, crime of child endangerment classified as felonious assault); State v. Rhode, 503 N.W.2d 27, 38 (Iowa App.1993). This court has long held, however,' that “the felony underlying a felony murder charge is not a lesser-included offense of felony murder.” State v. Walters, 426 N.W.2d 136, 141 (Iowa 1988). We reasoned in Walters that, to sustain a conviction under Iowa Code section 707.2, the State is not required to prove the defendant’s commission of the underlying felony but only his participation in it. Id.; accord Rhode, 503 N.W.2d at 41. Thus no double jeopardy violation is implicated. See Walters, 426 N.W.2d at 141 (no valid claim of former jeopardy where defendant convicted of first-degree burglary and felony murder); State v. Aswegan, 331 N.W.2d 93, 97-98 (Iowa 1983) (underlying felony of arson not lesser-included offense in prosecution for felony murder); Rhode, 503 N.W.2d at 41 (no double jeopardy violation where felony child endangerment furnishes basis for felony murder conviction because State not required to prove commission of underlying felony to sustain conviction for felony murder).

Even if felony child endangerment were a lesser-included offense of felony murder, Ruesga could not prevail on his double jeopardy claim. An exception to the doctrine has been recognized where the State is prevented from proceeding on a more serious charge because additional facts necessary to sustain that charge have not occurred or been discovered at the time the lesser charge is prosecuted. Brown, 432 U.S. at 169 n.7, 97 S.Ct. at 2227 n.7, 53 L.Ed.2d at 196 n.7; Diaz v. United States, 223 U.S. 442, 449, 32 S.Ct. 250, 251, 56 L.Ed. 500, 503 (1912). In Diaz, the Supreme Court held that double jeopardy considerations presented no obstacle to a prosecution for murder, even though Diaz had already been prosecuted for battery arising out of the same incident, because the victim had not yet died at the time of the trial for battery. Diaz, 223 U.S. at 449, 32 S.Ct. at 251, 56 L.Ed. at 503.

Our court of appeals followed the Diaz exception in State v. Henry, 483 N.W.2d 2, 4 (Iowa App.1992). Similar to the case before us, the victim in Henry sustained brain injuries that ultimately resulted in his death, but not before the defendant pleaded guilty and was sentenced for willful injury. The court held the State was not required to predict the future; because the victim’s death was a “new fact, the trial for murder did not place the defendant twice in jeopardy.” Henry, 483 N.W.2d at 4.

Ruesga claims on appeal that Henry’s, holding contravenes the prohibition against successive prosecutions lying at the heart of the Double Jeopardy Clause. We disagree with his premise and decline his invitation to overrule Henry. It is true that the rule is designed to protect defendants from State misconduct and the burden of repeatedly “running the gauntlet.” But, as the Ohio Supreme Court has wisely observed,

these considerations pale when a new offense matures only after the first trial is concluded. When it is impossible for the state to join all substantive offenses at one trial, the inconvenience to the defendant is clearly outweighed by the public’s interest in assuring that the defendant does not fortuitously escape responsibility for his crimes. A second trial, under such circumstances, cannot be characterized as harassment, but must be considered as reasonably serving the public need.

State v. Thomas, 61 Ohio St.2d 254, 400 N.E.2d 897, 904 (1980), overruled on other grounds by State v. Crago, 53 Ohio St.3d 243, 559 N.E.2d 1353 (1990); see also People v. Harding, 443 Mich. 693, 506 N.W.2d 482, 487 (1993) (conviction for felony murder upheld where victim died after prosecution for underlying crimes of armed robbery, assault and possession of firearm during commission of felony).

We likewise reject Ruesga’s claim that the sentences for his prior convictions merge, as a matter of law, with his conviction for murder. Our .merger statute directs that “[n]o person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted” and requires the court to enter conviction on the greater offense only. Iowa Code § 701.9. Ruesga is not entitled to the benefit of section 701.9 because, as already noted, the underlying felony in a felony murder prosecution is not a lesser-included offense of felony murder. Walters, 426 N.W.2d at 141; Rhode, 503 N.W.2d at 41. The district court committed no error in sentencing him, without regard to his prior convictions, for the death of Jonathan Waller.

C. Ineffective Assistance. Ruesga urges several grounds for reversal based on alleged ineffective assistance of counsel. To prevail on such a claim, a defendant must prove (1) counsel’s performance fell outside a normal range of competency, and (2) defendant suffered prejudice as a result; that is, but for counsel’s errors the outcome of the proceedings would have been different. State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992). We generally preserve ineffective assistance claims for postconviction proceedings to permit development of the record and to give counsel an opportunity to defend the challenged action or inaction. See id. at 56. We may resolve such claims on direct appeal, however, when the record is sufficient to address them. Id.

The State contends that Ruesga’s claims are sufficiently vagué or unmeritorious to warrant outright rejection on direct appeal. See State v. White, 337 N.W.2d 517, 519-20 (Iowa 1983). However we think they merit preservation for possible post-conviction treatment. They involve claims of' inadequate investigation and preparation for trial, as well as Ruesga’s claim that counsel failed to adequately confer with him during their “hybrid” representation in which Ruesga tackled some of the witness examination and argument pro se.

White involved “but a single paragraph” devoted to appellant’s ineffectiveness claim, an assertion deemed insufficient to minimally enable this court to assess the contentions. Id. at 519. Here, by contrast, the record reveals repeated concerns expressed by Ruesga before and during trial, as well as in the brief of appellate counsel, relating to strategic and tactical decisions deemed ineffective. Without speculating on the merit of these contentions, we preserve them for possible post-conviction review.

D. Additional Pro Se Issues. Ruesga also claims, by way of a supplemental pro se brief, that he is entitled to reversal based on the trial court’s denial of his motions to continue and to proceed pro se at trial. Because we find 'no merit in either of these contentions, we address them only briefly.

Continuance. Just over a week before trial was scheduled to begin, Rues-ga filed a pro se motion to continue. Defense counsel had already sought, and received, a five-week continuance and change of venue. Although defendant now implies that the denial of a second continuance compromised his right to defend himself, his focus during the motion hearing was on counsel’s alleged inability to find and depose essential character witnesses in the allotted time. Defense counsel denied additional time was necessary, questioning the number and identity of the proposed witnesses. Ruesga was unable to name or disclose the whereabouts of the witnesses he deemed so crucial to his defense.

Motions to continue are disfavored and are justifiable only upon a “showing of good and compelling cause.” Iowa R.Crim.P. 8.1(2). The burden rests on the one seeking a continuance to show that “substantial justice will be more nearly obtained” thereby. Iowa R.Civ.P. 183. Given the record before us, we find no abuse in the trial court’s discretionary decision to proceed to trial without further delay.

Motion to proceed pro se. At the pre-trial conference at which the continuance was considered, Ruesga expressed dissatisfaction with his appointed counsel and moved, orally, to proceed pro se. Hearing on the motion was deferred until four days before trial. At that time Rues-ga acknowledged that he could not competently cross-examine the State’s witnesses, particularly the medical professionals who would provide testimony related to cause of death. Ruesga ultimately consented to continued representation by his attorneys with the understanding that he could participate pro se during trial as he chose. The case thus proceeded to trial on this “hybrid” representation basis.

Ruesga now claims he was denied his Sixth Amendment right to self-representation. See Faretta v. California, 422 U.S. 806, 818-19, 95 S.Ct. 2525, 2532-33, 45 L.Ed.2d 562, 572-74 (1975). His claim finds no support in the record. He plainly invited counsel’s substantial participation in the cross-examination of the State’s expert witnesses. Thus, in the absence of proof that Ruesga later terminated such representation, we are entitled to presume counsel’s further representation in the matter was with defendant’s consent. McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 953, 79 L.Ed.2d 122, 136 (1984). No ground for reversal appears.

AFFIRMED.

McGIVERIN, S.J., participates in place of TERNUS, J., who takes no part.


author: LARSON, Justice. LAVORATO, Chief Justice

text:
    Kim NELSON; Lorie Nelson; Travis D. Nelson, By His Mother and Next Friend, Lorie Nelson; Trever E. Nelson, By His Mother and Next Friend, Lorie Nelson; and Taylor A. Nelson, By Her Mother and Next Friend, Lorie Nelson, Appellants, v. WINNEBAGO INDUSTRIES, INC., An Iowa Corporation; John Monson; Robert Miller; Gary Taylor; Michael Hoeft; Michael True; William Lamping; William Prescott; and Rick Willert, Appellees.
    No. 98-1986.
    Supreme Court of Iowa.
    Nov. 16, 2000.

      Charles H. Levad, Mason City, for appellants.
    Richard R. Winga and Darrell J. Isaac-son of Laird, Heiny, McManigal, Winga, Duffy & Stambaugh, P.L.C., Mason City, for appellees Monson and Willert.
    Mark S. Brownlee of Kersten, Brownlee & Hendricks, L.L.P., Fort Dodge, for ap-pellee Lamping.
    Mark R. Crimmins of Bennett, Crim-mins, Ostrander & Yung, Fort Dodge, for appellee True.
    C. Bradley Price of DeVries, Price & Davenport, Mason City, for appellee Hoeft.
    Mark A. Newman of Newman Law Office, Forest City, for appellees Taylor and Prescott.
    Lori E. Loftsgard and Joseph M. Barron of Peddicord, Wharton, Thune & Spencer, P.C., Des Moines, for appellees Winnebago Industries and Miller.
   LARSON, Justice.

This plaintiff, Kim Nelson, appeals from a summary judgment ruling in favor of his former employer and coemployees. He contends his suit is not preempted by our workers’ compensation law and the district court erred in concluding otherwise. We affirm.

I. Facts and Prior Proceedings.

Nelson had worked for the defendant, Winnebago, for several years but quit to take another job. On his last day of work, May 5, 1995, his coemployees threw a pizza party for him. After the party, coemploy-ees taped Nelson with duct tape and carried him to a shower in the plant. In the process, he claims he was dropped from approximately two feet or knee height, causing the injuries for which he has brought suit. The district court ruled that, under Iowa Code section 85.20(1) (1995), Winnebago is liable only under workers’ compensation law and not at common law. The court also ruled the plaintiffs coemployees may not be sued at common law because the plaintiff failed to generate a genuine issue of material fact on the issue of gross negligence under Iowa Code section 85.20(2).

II. The Suit Against Winnebago.

Nelson sued Winnebago, his employer, for the intentional torts of false imprisonment and battery — suits, he claims, that “do not require actual physical injury for recovery” and therefore are not barred by the exclusivity provisions of our workers’ compensation law. Winnebago is liable, he claims, because its supervisor, defendant Robert Miller, gave his implicit approval to the prank.

Iowa Code section 85.3(1) provides this trade-off between employers’ and employees’ rights in the context of work-related injuries:

Every employer, not specifically excepted by the provisions of this chapter, shall provide, secure, and pay compensation according to the provisions of this chapter for any and all personal injuries sustained by an employee arising out of and in the course of the employment, and in such cases, the employer shall be relieved from other liability for recovery of damages or other compensation for such personal injury.

Iowa Code section 85.20 expands on employer immunity:

The rights and remedies provided in this chapter, chapter 85A or chapter 85B for an employee on account of injury ... shall be the exclusive and only rights and remedies of such employee, the employee’s personal or legal representatives, dependents, or next of kin, at common law or otherwise, on account of such injury ... against:
1. The employee’s employer....

The plaintiff contends section 85.20 was never intended to protect employers or “coemployees from common law liability for their intentionally tortious acts” and summary judgment should not have been granted. The plaintiff says a court of appeals opinion implicitly recognized a right of action at common law against an employee for an intentional tort. See Hanson v. Schaumberg, 490 N.W.2d 84 (Iowa App.1992). The issues in Hanson were (1) whether an intentional tort had been adequately pled, and (2) whether there was sufficient evidence of an intentional tort to avoid summary judgment. The court of appeals affirmed the dismissal of the case on the second ground and did not even consider whether workers’ compensation provided the claimant’s only remedy.

We have found no case allowing a common-law suit against an employer for the acts of a supervising employee such as in this case. In fact, the general rule is that such suits are not permitted.

When the person who intentionally injures the employee is not the employer in person nor a person who is realistically the alter ego of the corporation, but merely a foreman, supervisor or manager, both the legal and moral reasons for permitting a common-law suit against the employer collapse, and a substantial majority of modern cases bar a damage suit against the employer.

2A Arthur Larson & Lex K. Larson, The Law of Workmen’s Compensation § 68.21(a), at 13-113 (1994) (citations omitted) [hereinafter Larson]. The authors of this treatise furnish this rationale for the rule:

The legal reason for permitting the common-law suit for direct assault by the employer or coemployee, as we have seen, is that the same person cannot commit an intentional assault and then allege it was accidental. This does not apply when the assailant and the defendant are two entirely different people. Unless the employer has commanded or expressly authorized the assault, it cannot be said to be intentional from his standpoint any more than from the standpoint of any third person. Realistically, it to him is just one more industrial mishap in the factory, of the sort he has a right to consider exclusively covered by the compensation system.

Larson § 68.21(b), at 13-123.

In this case, the plaintiff did not claim Winnebago “commanded or expressly authorized the assault” by its supervisory employee, so this case falls squarely under the general rule. We agree with the rationale of the rule and the rule itself. We hold as a matter of law that Winnebago, as the employer, is not liable at common law for the intentional torts of its supervisor, Robert Miller, unless as alleged by the plaintiff, his injuries fall outside the workers’ compensation law.

The plaintiff claims he suffered damages that are not covered by workers’ compensation, relying largely on Wilson v. IBP, Inc., 558 N.W.2d 132 (Iowa 1996). In Wilson we held a former employee’s suit for slander was not preempted by workers’ compensation because the Workers’ Compensation Act provided no adequate remedy for that tort. Id. at 137.

Here, the plaintiff claims he is not limited by workers’ compensation recovery because his suit for damages based on false imprisonment and battery does not require an “injury” within the meaning of workers’ compensation law and is therefore akin to slander as in the Wilson case.

A. False imprisonment. We have defined false imprisonment as an unlawful restraint on freedom of movement or personal liberty. Valadez v. City of Des Moines, 324 N.W.2d 475, 477 (Iowa 1982). The elements of the tort are (1) detention or restraint against a person’s will, and (2) unlawfulness of the detention or restraint. Id. Under the Restatement:

(1) An actor is subject to liability to another for false imprisonment if
(a)he acts intending to confine the other or a third person within boundaries fixed by the actor, and
(b) his act directly or indirectly results in such a confinement of the other, and
(c) the other is conscious of the confinement or is harmed by it.

Restatement (Second) of Torts § 35 (1965). Under this definition, a physical injury is not an element of false imprisonment, and several courts have so held. See, e.g., Moore v. Federal Dep’t Stores, Inc., 33 Mich.App. 556, 559, 190 N.W.2d 262, 264 (1971) (“[T]he gist of an action for false imprisonment is unlawful detention irrespective of any physical or mental harm.”); see also Fermino v. Fedco, Inc., 7 Cal.4th 701, 30 Cal.Rptr.2d 18, 30, 872 P.2d 559, 571 n. 6 (1994) (citing Moore ); McGowan v. Wainuick Corp., 691 So.2d 265, 266 (La. Ct.App.1997) (noting that petitioner’s claims of, among other things, false imprisonment and defamation did not involve physical or mental injury, and therefore fell outside remedies available under the state’s workers’ compensation act); Redi-can v. K Mart Corp., 734 S.W.2d 864, 869 (Mo.Ct.App.1987) (“False imprisonment and malicious prosecution actions do not seek damages covered by the Workers’ Compensation Act and therefore are not barred by the act.”).

B. Battery. Battery is defined by the Restatement in two ways: (1) harmful contact and (2) offensive contact. Restatement (Second) of Torts §§ 13, 18 (1965). The harmful contact under section 13 requires a “physical impairment of the condition of another’s body, or physical pain or illness.” Restatement (Second) of Torts § 15.

The second battery alternative does not require bodily injury in the common understanding of that term; rather, it requires offensive contact. Thus,

[a]n actor is subject to liability to another for battery if
a. he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
b. an offensive contact with the person of the other directly or indirectly results.

Restatement (Second) of Torts § 18(1) (1965). It does not require a physical injury. Under section 19, “[a] bodily contact is offensive if it offends a reasonable sense of personal dignity.” Restatement (Second) of Torts § 19 (1965).

C. Application to facts in suit against employer. The plaintiff argues his false-imprisonment and battery claims fall outside the scope of our workers’ compensation law because they do not require physical injury as a condition to recovery. According to the plaintiff, these claims are not preempted by workers’ compensation because workers’ compensation does not provide an adequate remedy for his damages. See Wilson, 558 N.W.2d at 137.

The problem with the plaintiffs argument is that, while he asserts causes of action against his employer that may in some circumstances provide a remedy for nonphysical injuries, that is not the gist of his suit. He does not demand damages for nonphysical injuries; his petition asserts that, as the result of the defendants’ acts, he has

suffered and continues to suffer serious and permanent personal injuries, mental pain, and mental distress as a result of the acts of defendants. He has incurred medical, hospital and other similar expenses and may in the future incur such expenses. He suffered and will suffer in the future loss of income and loss of earning capacity as a result of the acts of the defendants.

A mere labeling of a claim for injuries as false imprisonment or battery because in some circumstances those torts may be compensable without a physical injury cannot avoid the exclusivity of workers’ compensation if the gist of the claim is for bodily injury. In other words,

[i]f the essence of the tort, in law, is nonphysical, and if the injuries are of the usual non-physical sort, with physical injury being at most added to the list of injuries as a makeweight, the suit should not be barred. But if the essence of the action is recovery for physical injury or death, including in “physical” the kinds of mental or nervous injury that cause disability, the action should be barred even if it can be cast in the form of a normally non-physical tort.

Larson § 68.34(a), at 13-180.

In Iowa purely mental injuries caused by the workplace, even in the absence of a physical injury, are compensable under workers’ compensation. See Dunlavey v. Economy Fire & Cas. Co., 526 N.W.2d 845, 851 (Iowa 1995). Because such injuries are compensable under workers’ compensation, such rights would be exclusive.

We hold the plaintiffs suit is in essence a claim for damages covered by workers’ compensation and is therefore barred by Iowa Code section 85.20. This does not leave the plaintiff without compensation, however, because he has received compensation for his medical expenses in the amount of $23,268.77 and weekly benefits of $9115.07.

III. The Plaintiff’s Suit Against His Coemployees.

Under our Code, workers’ compensation benefits are the exclusive remedy against an employer for acts covered by the statute. Iowa Code § 85.20(1). In addition, workers’ compensation is the exclusive remedy against

any other employee of such employer, provided that such injury, occupational disease, or occupational hearing loss arises out of and in the course of such employment, and is not caused by the other employee’s gross negligence amounting to such lack of care as to amount to wanton neglect for the safety of another.

Iowa Code § 85.20(2) (emphasis added).

The requirements of this statute impose a substantial burden on a plaintiff attempting to sue a coemployee because it requires wanton neglect. In the first case decided under this “gross negligence” language, we noted:

The term “gross negligence” is said to be nebulous, without a generally-accepted meaning: It implies conduct which, while more culpable than ordinary inadvertence or [i]nattention, differs from ordinary negligence only in degree, not kind. However, the legislature added a new dimension and a certain amount of refinement to the term “gross negligence” in section 85.20 by providing it must “amount to wanton neglect for the safety of another.”
Similar to willful or reckless conduct, “wanton” conduct lies somewhere between the mere unreasonable risk of harm in ordinary negligence and intent to harm.

Thompson v. Bohlken, 312 N.W.2d 501, 504 (Iowa 1981) (quoting Iowa Code § 85.20(2)) (other citations omitted).

The key to liability under section 85.20(2) is a showing of “wanton” neglect. We discussed and illustrated the meaning of that term in Thompson:

[Authorities distinguish between willfulness, characterized by intent to injure, and wantonness, which merely implies an indifference to whether the act will injure another. The difference is illustrated by comparing the throwing of an object with intent to strike another and throwing it without such intent, but believing that it will, in fact, strike another, and proceeding with indifference as to whether it does not. Wantonness is said to be less blameworthy than an intentional wrong only in that instead of affirmatively wishing to injure another, the actor is merely willing to do so.

Id. at 505 (citations omitted).

In Thompson we adopted the following test to establish gross negligence amounting to such lack of care as to amount to wanton neglect under section 85.20(2):

(1) knowledge of the peril to be apprehended; (2) knowledge that injury is a probable, as opposed to a possible, result of the danger; and (3) a conscious failure to avoid the peril.

Id.

In applying this test, we view the evidence in the summary judgment record in the light most favorable to the plaintiff. The specific question is whether there is evidence that the defendants knew injury was “a probable, as opposed to a possible,” result of their actions and, nevertheless, proceeded with indifference.

A deposition of the plaintiff established that pranks were common at Winnebago. The plaintiff himself had participated in several of them, including lighting a fire to the strings of aprons being worn by coem-ployees so many times the witness relating these events could not even estimate the number. On the day in question, a coem-ployee sneaked up behind Nelson and began to tape him. Other employees joined in, and he was taped like a “mummy” with duct tape. The plaintiff testified “my hands and feet were taped. I couldn’t move.” His feet were “taped together tight” when his coemployee finished taping him. Seven (or possibly eight) men carried him a distance estimated by the plaintiff to be ten to fifteen feet to a shower, where he was dropped. Witnesses other than the plaintiff estimated it could have been as far as thirty feet. He said he did not believe anyone intended to drop him and the whole incident was “a practical joke.” Once taped, he did not resist because “DOt’s kind of hard to move when you’re taped up.”

The issue is whether, given the facts provided in the summary judgment record, viewed in the light most favorable to the plaintiff, could a reasonable fact finder conclude that injury to the plaintiff was a probable, as opposed to a possible, result. A probable result means a result that probably will occur. “Probably” is defined as that which “seems reasonably ... to be expected: so far as fairly convincing evidence or indications go.” Webster’s Third New International Dictionary 1806 (unabr. ed.1986).

We do not believe a reasonable fact finder could conclude that, when a person who was supported by seven or eight full-grown men was carried a distance of only ten to fifteen (or as many as thirty) feet, at a height' of only two feet, an injury was probable as opposed to possible. Applying the illustration in Thompson, carrying the plaintiff, believing that it would in fact result in injury to him “and proceeding with indifference as to whether it does [or] not” would be wanton conduct. The record in this case cannot reasonably be construed to support such a claim. We conclude the district court properly entered summary judgment in the suit against the coemployees.

We affirm on both issues.

AFFIRMED.

All justices concur except LAVORATO, C.J., and CARTER and NEUMAN, JJ., who concur in part and dissent in part.

LAVORATO, Chief Justice

(concurring in part; dissenting in part).

I concur as to Division I and dissent as to Division II.

Iowa Code section 85.20 provides that an employee may seek common-law recovery for injuries that arise out of and in the course of employment when they resulted from the gross negligence of coemployees amounting to such lack of care as to amount to wanton neglect for the safety of another.

As the majority notes, three elements are necessary to establish the gross-negligence claim: (1) knowledge of the peril to be apprehended; (2) knowledge that injury is a probable, as opposed to a possible, result of the danger; and (3) a conscious failure to avoid the peril. Henrich v. Lorenz, 448 N.W.2d 327, 332 (Iowa 1989). To recover, a plaintiff must establish all three elements by substantial evidence. Id. at 333.

The district court concluded there was a jury question as to the first and third elements. The majority does not dispute this conclusion.

However, the district court determined that, while a reasonable jury could conclude that those defendants actually carrying out the prank should have known that an injury to Nelson was possible, a reasonable jury could not conclude on this record that an injury was probable. The majority agrees.

The district court also concluded that, “[b]y binding Nelson’s arms with duct tape, the defendants prevented him from protecting himself. Therefore, an injury was possible if he were dropped to the floor.” Contrary to the district court and the majority, however, I think there were additional facts that generated a genuine issue of fact on whether the injury was probable.

The majority relies heavily on Nelson’s deposition testimony as proof that the injury was not probable. For example, the majority points out that Nelson testified that his hands and feet were taped and he therefore could not resist. Additionally, the majority relies on the fact that seven or eight men carried Nelson a distance estimated by Nelson to be ten to fifteen feet to a shower where he was dropped, striking the floor. The inference the majority makes is that, in all probability, seven or eight men would not drop an individual when that individual is unable to resist and is carried only a short distance.

There are several problems with this reasoning. Considering Nelson’s deposition as a whole, one can reasonably con-elude Nelson had no clear memory of what happened once he was accosted because he probably blacked out after hitting the floor. Most of what he relates is what people told him. More important, Bill D. Lamping, one of the defendants, who has much to lose in this lawsuit, testified in his deposition directly contrary to what Nelson testified.

First, Lamping testified that Nelson was struggling intensely with his captors:

■ Q. When you say they were struggling with Kim Nelson; is that correct? A. Yes.
Q. Tell me — Can you describe what you saw? A. Well, Kim was fighting like a madman. And these other guys were trying to tape him up.
Q. You say he was fighting- like a madman. He was trying to get loose. A. Yes.
Q. All right. A. He was trying to hurt—
Q. Pardon? A. He was trying to hurt some of the other people.
Q. Trying to hurt them? A. Yes, by grabbing their testicles, pinching them, hitting them.

Second, according to Lamping, Nelson’s legs were not taped together:

Q. Approximately how long did they take in taping him up completely? A. A few minutes.
Q. At the end of that period of time he was then — were his arms taped down to his side? A. Yes, they were.
Q. Were his legs taped together? A. No, they were not.
Q. His arms were incapacitated though, weren’t they? A. Yes, they were.
Q. There was no tape on his legs at all? A. No, there was not.

Third, Lamping confirmed that the defendants were having a problem carrying Nelson and that he — Lamping—warned the defendants:

Q. During the taping was he picked up off the ground? A. Yes, he was.
Q. You said you at one point did something with one of his legs? A. I supported it.
Q. Okay. Tell me how that happened. What are you saying? What did you do? A. I’m saying that they were having him at an angle, and I hollered at them to pick him up before they dropped him and hurt him. And they got him up and dropped his leg. And I went under it and stuck my arms under it like this.
Q. And why do you say you were supporting him? A. Yes.
Q. I mean, why were you doing that? A. So they wouldn’t drop him.
Q. [D]id he get one leg loose? A. The way he was fighting, I’d say he probably pulled one loose.

Additionally, according to Lamping, six men carried Nelson, who at the time weighed 220 pounds, while he — Lamping— supported Nelson’s legs. The evidence would also support a finding that the defendants carried Nelson twenty to thirty feet to the shower. From the injuries sustained and from Nelson’s testimony, a fact finder could reasonably find that Nelson fell on his face. The evidence shows he also sustained injuries to his head, neck, back, and shoulders. The injuries were apparently serious, because Winnebago paid medical benefits totaling $23,268.77.

Viewing this evidence in the light most favorable to Nelson, I think a fact finder could piece together the following scenario. Six men, bent on a mission to carry a fellow employee to a shower some thirty feet away, taped the struggling 220-pound employee around his arms, leaving his legs free with which he could and did struggle. Before reaching the shower, one of the men warned the others to pick up the struggling employee at a better angle before they dropped him and hurt him. In fact, the men did drop the struggling man face first to the ground, injuring him seriously.

I think at the point of warning, it became evident to all, as a matter of common sense, that unless they ceased in their efforts to carry out the prank, the pranksters would injure the victim by dropping him. Notwithstanding the warning and the obvious danger that injury was a probable consequence of their actions, the pranksters continued in their prank until the obvious became a reality.

In Alden v. Genie Industries, two employees were painting light poles using the employer’s manlift. 475 N.W.2d 1, 1 (Iowa 1991). The employees’ supervisor told them to continue painting even though one of them warned the supervisor it was too windy to use the manlift. Id. The manlift collapsed while the two employees were painting the light poles, causing one of them to fall to his death. Id. We focused on the warning as generating a genuine issue of material fact on whether the supervisor knew that the fall was a probable, as opposed to a possible, result of danger. Id. at 3.

Likewise, in Sivanson v. McGraw, warning played a key role in generating a genuine issue of material fact on this element of a section 85.20 gross negligence case. 447 N.W.2d 541, 545 (Iowa 1989). In Swanson, the injured employee was working with a soap that contained highly caustic chemicals such as lye, which could cause severe chemical burns. Id. The fact that the employee told his supervisor twice of a tear in his protective suit and the supervisor told him to protect himself the best he could was significant on the probability-of-injury element. Id.

Contrary to the majority, I would hold that Nelson generated a genuine issue of material fact on the probability-of-injury element and would therefore reverse and remand for further proceedings on the gross-negligence claim.

CARTER and NEUMAN, JJ., join this concurrence in part and dissent in part.

      . The defendants do not argue that Nelson has elected his remedies by accepting workers' compensation nor that he has waived a common-law cause of action because of his acceptance of benefits. Accordingly, we do not discuss those issues.


author: PER CURIAM.

text:
    STATE of Iowa, Appellee, v. Dennis Alan MARING, Jr., Appellant.
    No. 00-0084.
    Supreme Court of Iowa.
    Nov. 16, 2000.

      Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, John P. Sareone, County Attorney, and Jeff Noble and Tom Webster, Assistant County Attorneys, for appellee.
   PER CURIAM.

The defendant, Dennis Maring, Jr., was convicted of eluding a law enforcement vehicle, possession of burglary tools, and interference with official acts in violation of Iowa Code sections 321.279, 713.7, 719.1 (1999). He appeals only from his conviction for interference with official acts, challenging the sufficiency of the State’s evidence to establish he was the driver of the vehicle involved in a high-speed chase. We affirm.

In the early morning hours of May 8, 1999, a state trooper pulled over a vehicle for failing to have taillights. The trooper walked toward the car, and when he was within five to eight feet of the driver, the vehicle drove away. Following a high-speed chase, the driver eventually jumped out of his car and fled on foot. The trooper yelled for the driver to stop, and the driver turned around briefly before continuing to flee. The trooper observed that the driver was a white male, approximately five-eight to six-foot tall, with dark-colored hair that was curly in the back. At trial the trooper testified the defendant matched the description of the driver he saw fleeing from the vehicle.

The vehicle was registered to the defendant, and the trooper found the defendant’s wallet inside the car. The trooper visited the home of the defendant’s mother and viewed a family photo. He picked out the defendant as the person who he believed had been driving the vehicle.

The defendant’s vehicle was impounded, and approximately two weeks later, he contacted the trooper about having it released. The defendant met with the trooper and indicated he had not been driving the vehicle at the time of the chase. He claimed the car had earlier overheated, and he had left it in a parking lot with his keys and wallet inside. The trooper testified that during the chase the defendant’s vehicle had been traveling seventy miles per hour, and it had not appeared to be overheating or having any mechanical problems.

We review challenges to the sufficiency of the evidence for errors at law. State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). We uphold a finding of guilt if substantial evidence supports the verdict. Id. Substantial evidence is evidence upon which a rational finder of fact could find a defendant guilty beyond a reasonable doubt. Id. We view the evidence in the light most favorable to the State but consider all of the evidence, not just that which supports the verdict. State v. Jacobs, 607 N.W.2d 679, 682 (Iowa 2000).

There was sufficient evidence from which the jury could find beyond a reasonable doubt that the defendant was the driver of the vehicle. The vehicle was registered to him, his wallet was inside of it, and he matched the physical description of the individual the trooper saw fleeing from the car. The defendant’s story about his car overheating and his earlier abandonment of it was implausible and the jury was free to disregard it. See State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993) (jury is free to believe or disbelieve any testimony as it chooses and to give weight to the evidence as in its judgment such evidence should receive). It is the function of the jury to sort out the evidence presented and place credibility where it belongs. State v. Blair, 347 N.W.2d 416, 420 (Iowa 1984).

Upon a review of the entire record, we find there was sufficient evidence to support a finding that the defendant was the driver of the vehicle. The defendant’s conviction for interference with official acts is affirmed.

AFFIRMED.

      . To the extent the decision in State v. Turk, 595 N.W.2d 819, 821 (Iowa App.1999), held that a reviewing court needs only to consider the evidence favorable to the judgment, that case is overruled. See State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980) (holding reviewing court must consider all evidence when determining sufficiency of evidence).


author: SNELL, Justice.

text:
    STATE of Iowa, Appellee, v. Jeremy Shane LaRUE, Appellant.
    No. 99-801.
    Supreme Court of Iowa.
    Nov. 16, 2000.

      Penelope C. Souhrada, Davenport, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, William E. Davis, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).

   SNELL, Justice.

This is an appeal resulting from a guilty plea accepted by the district court. Appellant seeks an invalidation of his plea and conviction because his former counsel was appointed by the court to represent a co-defendant in the same proceeding, subsequent counsel failed to object, and subsequent counsel failed to depose a defense witness. We find that a valid guilty plea waives each challenge asserted here. We affirm the guilty plea and conviction.

I. Facts and Procedural History

Due to an incident occurring on October 29, 1998, Jeremy Shane LaRue was charged with first-degree kidnapping and first-degree robbery. Attorney Patricia Zamora was appointed as counsel for La-Rue on November 4, 1998. She served as his counsel for nineteen days, after which time she discovered that LaRue’s co-defendant was her former client. Zamora was allowed by the court to withdraw as La-Rue’s counsel on November 23, 1998. Zamora was subsequently appointed to represent her former client and LaRue’s co-defendant, Lana Kelly, who faced identical charges. While representing Kelly, Zamora negotiated a favorable sentence for Kelly in exchange for her client’s damaging statement against LaRue.

The district court granted the counsel substitution “because of prior legal involvement with Lana Kelly, Pat Zamora could appear to have a conflict of interest.” It recognized that prejudice to LaRue and Kelly was a concern, but concluded that “these cases [were] pre-arraignment and no prejudice [would] come to any party as a result of substitution of counsel.” La-Rue made no objection to the switch at this time, nor at any time during the plea hearing or sentencing. He makes this challenge for the first time before this court on direct appeal.

As a result of Kelly’s testimony against him, LaRue was faced with the predicament of going to trial and running the risk of a life sentence in prison or accepting his plea agreement and pleading guilty to third-degree kidnapping and first-degree robbery. He opted for the latter. Then represented by attorney David Treimer, LaRue pled guilty and was sentenced to concurrent terms of twenty-five and ten years. Although informed of the required procedure to challenge a conviction following a guilty plea, LaRue failed to file a motion in arrest of judgment.

LaRue makes several constitutional challenges here on appeal. The State counters that error was not preserved on these issues and that a valid guilty plea effectively waives all challenges except those directed toward the validity of the plea itself.

II. Issues on Appeal

LaRue argues his guilty plea and conviction are invalid because of the occurrence of three constitutional violations in the former proceedings. (1) Specifically, LaRue alleges that the district court erred when it allowed his former counsel, Zamora, to represent his co-defendant. He argues this created a conflict of interest by virtue of his previous relationship with Zamora as his lawyer and her subsequent involvement in his conviction. LaRue claims the district court violated his Sixth Amendment rights under the United States Constitution by appointing an attorney with a conflict of interest. (2) LaRue further argues that his trial counsel, Treimer, was ineffective for failing to object to this conflict thereby depriving him of his Sixth Amendment right to be effectively represented by counsel. (3) LaRue also charges that Treimer failed to depose a crucial witness that may have led to exculpatory evidence.

A. Effect of the Guilty Plea on the Conflict Claim

The entry of a guilty plea and the subsequent acceptance of it by the court is meant to be a final adjudication of the defendant’s guilt. “Once a defendant has waived his right to a trial by pleading guilty, the State is entitled to expect finality in the conviction.” State v. Mann, 602 N.W.2d 785, 789 (Iowa 1999). This is true because “[a] plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction.” Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274, 279 (1969). “Accordingly, any constitutional challenge that would undermine the defendant’s conviction, with certain exceptions[,] ... is waived.” Mann, 602 N.W.2d at 789.

This court has previously recognized five challenges which are not waived by a plea of guilty. A defendant may allege insufficient trial information or facial constitutional vagueness of the statute he was convicted under. State v. White, 545 N.W.2d 552, 554 (Iowa 1996); State v. Robinson, 618 N.W.2d 306, 312 (Iowa 2000), overruling in fart State v. Hunter, 550 N.W.2d 460, 462 n.1 (Iowa 1996) (holding previously that a guilty plea did not waive an as applied challenge of the convicting statute). A defendant does not waive the claim that his plea was uninformed or involuntary. State v. Nikkei, 597 N.W.2d 486, 487-88 (Iowa 1999). We have previously said the claim of double jeopardy is not foreclosed by a guilty plea. State v. Baehler, 604 N.W.2d 601, 602 n.l (Iowa 1999). But see United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 762, 102 L.Ed.2d 927, 935-36 (1989). A defendant may still challenge the sentencing statute. Mann, 602 N.W.2d at 789-90. Lastly, the claim of ineffective assistance of counsel which calls into question the voluntariness of the defendant’s plea may be brought following a guilty plea. Mott v. State, 407 N.W.2d 581, 582-83 (Iowa 1987).

LaRue alleges that a conflict of interest was created when his former attorney was appointed to represent his co-defendant. This claim does not nicely fit within one of the above exceptions. LaRue makes no challenge that his guilty plea was involuntary, that it was based on inadequate trial information, or the result of a defective statute. Double jeopardy is also not at issue in this case. LaRue does argue that his own counsel was ineffective, but this has no relation to the conflict of interest claim. We will discuss the availability of the defendant’s ineffective assistance of counsel claim later in this opinion.

We are persuaded that “a guilty plea taken in conformity with Iowa Rule of Criminal Procedure 8(2)(b) waives all defenses and objections.” State v. Antenucci, 608 N.W.2d 19, 19 (Iowa 2000). The fact that a constitutional right may be involved does not change our decision. “A constitutional right, like any other right of an accused, may be waived ... [when] defendant plead[s] guilty in open court, with assistance of counsel.... ” State v. Delano, 161 N.W.2d 66, 73 (Iowa 1968); see also Mann, 602 N.W.2d at 788 (recognizing guilty plea waives the Fifth Amendment right not to incriminate oneself, the Seventh Amendment right to trial by jury, and the Sixth Amendment right to confront accusers (citing Boykin, 396 U.S. at 243, 89 S.Ct. at 1712, 23 L.Ed.2d at 279)).

LaRue wants this court to promulgate a rule that the alleged conflict of interest present in this case should be judicially noticed and the former attorney disqualified by the court even though no objection was made. LaRue’s claim that the district court violated his Sixth Amendment rights by approving the counsel substitution is one unique to this jurisdiction. Moreover, we can find no other court across the country that has addressed this issue. La-Rue phrases it as a Sixth Amendment conflict of interest claim, but the State argues it is actually a Fifth Amendment Due Process claim. Without passing judgment on whether LaRue’s claim constitutes a Sixth Amendment claim or a Fifth Amendment Due Process claim, we hold that it was waived by LaRue’s guilty plea.

B. Effect of the Guilty Plea on the Ineffective Assistance Claim

Following a valid guilty plea only those challenges that are fundamental to the plea itself still remain available to the defendant. See Mann, 602 N.W.2d at 789. Generally, ineffective assistance of counsel claims fall within this category. See Mott, 407 N.W.2d at 582-83. Howev-

er, this court has recently held that if the undercurrent of the ineffective assistance claim is an issue designed to question the validity of the conviction, it, too, is waived. Speed v. State, 616 N.W.2d 158, 159 (Iowa 2000) (per curiam) {Speed IT). In Speed II, we held that we would not hear ineffective assistance claims that did not “bear[ ] on the knowing and voluntary nature of a plea.” Id. In an earlier disposition of the same case on direct appeal we had occasion to state: “Any subsequently discovered deficiency in the State’s case that affects a defendant’s assessment of the evidence against him, but not the knowing and voluntary nature of the plea, is not intrinsic to the plea itself.” State v. Speed, 573 N.W.2d 594, 596 (Iowa 1998) (Speed I).

The Speed II court dealt with a challenge of the failure of counsel to move for suppression of evidence in the “guise” of an ineffective assistance of counsel claim. Speed II, 616 N.W.2d at 159. The court first recognized that evidentiary challenges which attack the basis for the conviction “do not survive the entry of a guilty plea.” Id. (citing State v. Sharp, 572 N.W.2d 917, 918-19 (Iowa 1997)); see also Speed I, 573 N.W.2d at 596 (holding that the decisions not to investigate further or move to suppress evidence have more relation to a “tactical rationale for pleading guilty [than] a defendant’s understanding of what a plea means” or its voluntariness). When these challenges are then brought disguised as ineffective assistance claims the result is unchanged, and the objection is waived. Speed II, 616 N.W.2d at 159.

We hold that LaRue’s ineffective assistance claims presented here fall within the Speed II rationale. The defendant maintains that his counsel should have objected to the alleged conflict of interest created by the counsel substitution and should have deposed a defense witness. Neither of these claims imply the defendant’s plea was uninformed or involuntary. In Speed II, we held that counsel’s failure to investigate or move in objection were not circumstances inherent in the plea itself. Such is also the case here. Moreover, LaRue’s conflict of interest assertion is not a viable claim recognized by this court. Were we to preserve it for postconviction, we would have no definable issue to leave for the district court’s perusal. This is because in the instant case there is no record made as to what information was obtained by Zamora in her representation of LaRue that specifically prejudiced his rights when she subsequently represented Kelly. Accordingly, we hold that LaRue waived his ineffective assistance claims upon pleading guilty.

C. Conclusion

The general rule is that when defendant’s attorney has a conflict of interest he should be disqualified, and if he is not, the conviction may be overturned for that reason. See Rickers v. Marsh & McLennan Group Assocs., 459 N.W.2d 478, 481-82 (Iowa 1990). Here the conflict stems, not from LaRue’s trial counsel, but from former counsel. While we recognize the potential problems created by this scenario, we have no occasion to consider if this rule should be extended when former counsel represents a co-defendant in the same proceeding. By virtue of LaRue’s informed guilty plea, the objection based on this issue was waived. For the same reasons, we also pass no judgment on the ineffective assistance claims because we hold that they were waived by the guilty plea. Accordingly, LaRue’s conviction based on his guilty plea is affirmed.

AFFIRMED.

McGIVERIN, S.J., participates in place of LARSON, J., who takes no part.


author: CARTER, Justice.

text:
    STATE of Iowa, Appellee, v. Christopher R. GRANDBERRY, Appellant.
    No. 99-2061.
    Supreme Court of Iowa.
    Nov. 16, 2000.

      Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, William E. Davis, County Attorney, and Kelly G. Cunningham, Assistant County Attorney, for appellee.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).

   CARTER, Justice.

Defendant, Christopher Grandberry, pled guilty to first-degree theft in violation of Iowa Code sections 714.1(1) and 714.2(1) (1999), pursuant to a plea agreement. The court sentenced him to an indeterminate, ten-year term of imprisonment. After considering the arguments on appeal, we affirm the conviction and sentence.

Defendant contends that the sentencing judge relied on improper sentencing considerations by referring to defendant’s failure to appear on traffic charges when no failure-to-appear charges were prosecuted. In explaining the reason for defendant’s sentence, the court mentioned several serious offenses committed by defendant and also alluded to traffic charges and failure-to-appear notations. All of this data was contained in the presentence investigation report. That report revealed the following criminal history:

1987 Forgery — probation revoked.
1988 Felony Theft — probation revoked.
1991 Second Degree Theft — incarcerated, then granted shock probation.
1993 Simple Domestic Assault — 30-day incarceration sentence, suspended except for 2 days.
1996 Fourth Degree Theft — failure to appear, warrant served, received suspended sentence, a year’s probation, then failed to appear for probation review.
1999 Offense in Rock Island County — warrant active.

The report also listed the following traffic offenses:

1995 No Registration — failure to appear, default judgment.
1995 No Driver’s License — failure to appear, default judgment.
1996 No Driver’s License (3 instances) — failure to appear, default judgments.
1996 Improper Use of Registration — failure to appear, warrant served, pled guilty.
1998 Speeding — failure to appear, default judgment.
1998 No Driver’s License (2 instances) — failure to appear, default judgments.
1998 Obedience to Traffic Control — failure to appear, default judgment.

The district court concluded that defendant’s criminal history indicated defendant’s disregard for his responsibility as a citizen to obey the law. The court decided it was inappropriate to give defendant another opportunity for community rehabilitation by granting probation.

I. Standard of Review.

A sentence imposed by the district court is reviewed for errors at law. Iowa R.App.P. 4. “Sentencing decisions ... are cloaked with a strong presumption in their favor.” State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995). “A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure, such as trial court consideration of impermissible factors.” Id. (citing State v. Wright, 340 N.W.2d 590, 592 (Iowa 1983)).

II. Whether the District Court Properly Considered Defendant’s Failure to Appear in Court For Traffic Charges in Sentencing Defendant For His Conviction For Theft.

A. Arguments. Defendant argues that the district court abused its discretion by improperly considering his failure to appear in court for traffic charges in sentencing him for theft. Defendant contends that the traffic charges were unproven offenses. He urges that the sentencing judge’s attitude toward the traffic offenses was a substantial reason for imposing a sentence of incarceration.

The State asserts three reasons why the district court’s consideration of defendant’s failure to appear in court for traffic charges was proper in sentencing defendant. First, defendant’s failure to appear for traffic charges was part of the procedural history of defendant’s criminal record which was properly included in the presentence investigation report. Second, because the primary purpose of a presen-tence investigation report is to aid the district court in determining an appropriate sentence, the district court correctly used defendant’s report, including his criminal history, in evaluating his past performance in appearing in court and complying with probationary conditions. Third, because defendant did not contest the facts in the presentence investigation report related to his failure to appear for traffic charges, those facts stand as admitted and the associated default judgments provide adequate proof that defendant failed to appear for those charges.

B. Analysis. We have recognized that, “when a challenge is made to a criminal sentence on the basis that the court improperly considered unproven criminal activity, the issue presented is simply one of the sufficiency of the record to establish the matters relied on.” State v. Longo, 608 N.W.2d 471, 474 (Iowa 2000). The standard of proof during the sentencing stage is lower than the standard used during trial. Id. at 475; see also State v. Rettinghaus, 591 N.W.2d 15, 17 (Iowa 1999) (“Outcome determinative sentencing data need only be found to exist by a preponderance of the evidence.”) (citing McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S.Ct. 2411, 2419, 91 L.Ed.2d 67, 79 (1986)). If a court in determining a sentence uses any improper consideration, re-sentencing of the defendant is required. State v. Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998). This is true even if it was merely a “secondary consideration.” State v. Messer, 306 N.W.2d 731, 733 (Iowa 1981) (“[W]e cannot speculate about the weight trial court mentally assigned [an improper] factor, or whether it tipped the scales to imprisonment.”). In addressing defendant’s claim, we must evaluate whether the district court’s consideration of defendant’s failure to appear in court for traffic charges was proper in sentencing defendant for theft.

The primary function of the pre-sentence investigation report is to provide pertinent information to aid the district court in sentencing a defendant. State v. Uthe, 541 N.W.2d 532, 533 (Iowa 1995). When a presentence investigation report is ordered by a district court, the investigator is required to include the defendant’s criminal record. Iowa Code § 901.3(2) (1999). In determining a defendant’s sentence, a district court is free to consider portions of a presentence investigation report that are not challenged by the defendant. See State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998) (explaining that district court was free to consider the portions of the presentence investigation report which were not challenged by defendant); Gonzalez, 582 N.W.2d at 517 (finding that district court properly relied on defendant’s statements in the presen-tence investigation report which amounted to an admission of other criminal activity because the statements were not challenged by defendant when he was given an opportunity to do so); State v. Tovm-send, 238 N.W.2d 351, 358 (Iowa 1976) (finding that district court acted properly in considering the presentence investigation report because defendant left the report “unchallenged as to accuracy except in two minor particulars”).

The State argues that all facts contained within the presentence investigation report that were not denied by defendant stand as admitted. In Gonzalez the presentence investigation report contained statements made by the defendant to the investigator concerning the defendant’s participation in the sale of cocaine. Gonzalez, 582 N.W.2d at 517. The defendant had been charged with this offense but the charge had later been dropped. Id. We held that in sentencing the' defendant, the district court properly considered the presentence investigation report because the defendant did not make any material corrections to the report when it was presented to him. Id. We found that the statements made to the investigator concerning the sale of cocaine constituted an admission to the offense which the district court properly relied upon in sentencing the defendant on another charge. Id. Although the items at issue in the Gonzalez case were statements made to the pre-sentence investigator by the defendant, we conclude that the same principle applies when an accused does not contest data in the presentence investigation report obtained from other sources.

Defendant specifically argues that the district court improperly considered defendant’s traffic charges and his failure to appear in court for those charges. Defendant does not dispute the court’s reliance on the more serious offenses listed in the presentence investigation report. He argues that he was never prosecuted for contempt or prosecuted under failure to appear provisions such as Iowa Code section 805.5 for his failure to appear for traffic charges. Defendant is not incorrect in identifying his failure to appear in court and the traffic charges as unprosecuted offenses. He is less convincing, however, in arguing that these offenses are unproven.

In United States v. Jiles, 102 F.3d 278 (7th Cir.1996), the Seventh Circuit Court of Appeals examined a similar issue concerning the sentencing court’s reliance on previous default judgments entered against the defendant for his failure to appear in court for municipal violations. Jiles, 102 F.3d at 279-82. Under the Wisconsin law applicable to that case, a person who commits a municipal violation and fails to appear in court is deemed to have entered a plea of no contest (ie., plea of nolo contendere). Wis.Stat.Ann. § 800.09(2)(b) (West Supp.1995-96); Jiles, 102 F.3d at 280. Wisconsin law further provides that if the defendant pleads no contest, the court is to convict the defendant and render judgment. Wis.Stat.Ann. § 800.09(2)(a) (West Supp.1995-96). The Seventh Circuit concluded that a no-contest plea resulting in conviction constitutes an adjudication of guilt. Jiles, 102 F.3d at 280. Accordingly, the court held that the district court’s consideration of the defendant’s municipal violations for which he failed to appear was proper in sentencing defendant for a different charge. Id.

Iowa Code section 805.6 addresses the implications of a defendant’s failure to appear in court when requested to do so for a criminal charge. This Code section provides the language required for the uniform citation and complaint form that defendant should have received for each of his traffic charges. The required language reads, “if I fail to appear ... the court is authorized to enter a conviction and render judgment against me for the amount of my appearance bond in satisfaction of the penalty plus court costs.” Iowa Code § 805.6(l)(b) (emphasis added). This default judgment process is very similar to the process outlined in the Wisconsin statute that the Seventh Circuit determined resulted in adjudication of guilt. Furthermore, according to Black’s Law Dictionary, “convict” means “[t]o find a person guilty of a criminal charge, either upon a criminal trial, a plea of guilty, or a plea of nolo contendere.” Black’s Law Dictionary 232 (6th ed.1993). “Conviction” is defined as “[t]he final judgment on a verdict or finding of guilty, a plea of guilty, or a plea of nolo contendere.” Id.

The default judgments listed in the pre-sentence investigation report provide sufficient proof that defendant did not appear in court for the traffic charges. His failure to appear resulted in convictions for the traffic charges. The sentencing judge did not act improperly in considering all of these matters.

We have considered all issues presented and conclude that the judgment and sentence of the district court should be affirmed.

AFFIRMED.

McGIVERIN, S.J., participates in place of LARSON, J., who takes no part.

      . Generally, abuse of discretion and consideration of improper factors are separate issues in reviewing a sentence imposed by a district court. Although defendant claims the district court abused its discretion in imposing the sentence on defendant, the arguments set forth in his brief relate solely to the district court’s consideration of what defendant claims are improper factors. Whether the district court abused its discretion should not be an issue in this case.

      . The State relies on United States v. Joshua, 40 F.3d 948 (8th Cir.1994), in asserting that the facts of defendant’s criminal history in the presentence investigation report stand as admitted by defendant because he did not deny any of those facts. Although the Eighth Circuit Court of Appeals did conclude that the facts of a criminal history in a presentence investigation report do stand as admitted when the facts are not denied by the defendant, the court limited this holding to "prior sentences, prior similar civilly-adjudicated misconduct, and prior similar adult criminal conduct not resulting in conviction.” Joshua, 40 F.3d at 952-53. The court stated that a sentencing court may not consider a record of arrests alone. Id. at 953. Joshua was decided using federal sentencing guidelines. Id. at 950-53.

      . As this case involved a federal criminal offense, the Seventh Circuit Court of Appeals relied more heavily on the federal sentencing guidelines than on the Wisconsin statute. Jiles, 102 F.3d at 280. The federal sentencing guidelines provide that a no contest plea constitutes an adjudication of guilt. Id.