text:
    STATE of Iowa, Appellee, v. Gary Lynn BOWERS, Appellant.
    No. 02-0020.
    Supreme Court of Iowa.
    May 7, 2003.

      Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Lee W. Beine, County Attorney, for appellee.
   CARTER, Justice.

Defendant, Gary L. Bowers, appeals from convictions on four counts of second-degree sexual abuse in violation of Iowa Code sections 709.1 and 709.3 (2001). He urges that the judgments of conviction should be overturned based on the ineffectiveness of his trial counsel in the following particulars: (1) filing an untimely motion to suppress his confession, (2) failing to urge that his confession was the fruit of an illegal search, (3) failing to request a jury instruction on the voluntariness of his confession, (4) failing to request a jury instruction on the State’s alleged failure to preserve evidence, (5) failing to challenge alleged prosecutorial misconduct during final argument, and (6) failing to make an adequate record to challenge the district court’s rejection of a proposed plea agreement. After considering each of these contentions, we affirm the judgment of the district court.

Defendant, Gary Bowers, is the stepfather of Zebidiah Holevoet, born on July 22, 1986. Zebidiah lived with his father until he was nine years of age, at which time he moved in with his mother, Tina Bowers, and defendant. The family moved into a new home at 288 South Second Street in West Branch, Iowa, when Zebidiah was ten years of age.

When he was fourteen, Zebidiah returned to the residence of his father, Cory Holevoet. At this time, he told his father about sexual activity he had participated in with his mother and defendant. Mr. Hole-voet contacted the Illinois Department of Human Services about Zebidiah’s allegations, and a criminal investigation ensued.

Special agent Richard Rahn of the Iowa Department of Criminal Investigation (DCI) was assigned to the case. Agent Rahn interviewed Zebidiah on May 25, 2001, and tape recorded the interview. In that interview, Zebidiah told agent Rahn the following.

Approximately two months after moving into the West Branch home, Zebidiah alleged that he and his mother were drinking wine coolers and began discussing sex. He claimed that at his mother’s urging he performed oral sex on her, she performed oral sex on him, and they engaged in sexual intercourse. About three days later, Zebidiah alleged that he performed oral sex on defendant, defendant performed oral sex on him, and he again engaged in sexual intercourse with his mother. Zebi-diah testified that this type of sexual activity continued one to three times per week for approximately one year.

In addition to revealing the sexual activity with his mother and defendant, Zebidi-ah informed agent Rahn that defendant had videotaped a seventeen-year-old girl taking a shower and toweling off thereafter. Based on that information, agent Rahn secured a warrant to search the Bowers’ home for that videotape or any other pornographic material involving minors. The Bowers were then living in Lone Tree. The search of the Bowers’ home pursuant to the warrant began with neither defendant nor his wife at home. Approximately thirty minutes into the search, Tina Bowers returned home. Agent Rahn read the search warrant to Tina and asked her to accompany him to the Riverside Fire Department for an interview. Agent Rahn drove Tina in his unmarked squad car, and DCI agent Matt George accompanied them.

Defendant arrived home after Tina had left with the agents. He was advised that the officers were at his residence executing a search warrant for pornographic videos. He was also requested, to accompany two officers to the Riverside Fire Department for questioning. When he arrived at the fire department, he spoke briefly with Tina before he was interviewed. Agent Rahn interviewed defendant alone, while agent George sat in an adjoining area out of defendant’s view but trying to listen. The interview was not recorded. Agent Rahn initiated the interview by reading defendant his Miranda rights and getting a family history.

About halfway through the interview, defendant was advised he was being investigated for sexual abuse. Defendant admitted Zebidiah had performed oral sex on him on at least two occasions and that he performed oral sex on Zebidiah on one occasion. Defendant also admitted there were separate acts of fondling. Defendant estimated that the sexual activity occurred approximately once per week, over a two-to six-month period. The entire interview took approximately one hour.

After the criminal charges that are the subject of this appeal were filed against him, defendant filed a motion to suppress the use of his confession as evidence on the basis that it was involuntary. Although this motion was untimely, the district court held a hearing and ruled on the merits of the motion. The motion was denied. At the ensuing trial, agent Rahn testified to the substance of defendant’s oral confession. Zebidiah testified and confirmed the allegations he had made to authorities. The jury convicted defendant on all four counts of the trial information. Other factors that are relevant to the issues on appeal will be discussed in connection with our consideration of the legal issues presented.

I. Standard of Review.

Claims of ineffective assistance of counsel are reviewed de novo, as they implicate a violation of constitutional rights. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). Such claims are generally preserved for postconviction-relief proceedings. Id. However, when a satisfactory record exists upon which to base a conclusion, the court resolves the issues on appeal. Id. The test is whether under the entire record and totality of the circumstances, counsel’s performance was within the normal range of competence. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000).

To sustain a claim for ineffective assistance of counsel, the defendant must prove by a preponderance of the evidence that trial counsel failed in an essential duty and that prejudice resulted from such failure. Oetken, 613 N.W.2d at 683. There is a strong presumption that counsel’s performance meets professional standards. Id. Improvident trial strategy or miscalculated tactics do not necessarily constitute ineffective assistance of counsel. Id. at 683-84. Additionally, in order to show prejudice, the defendant must prove by a reasonable probability that the outcome of the proceeding would have been different had counsel not erred. Id. at 684.

II. Issues Involving the Motion to Suppress Evidence.

Defendant makes two claims of ineffective assistance of counsel as a result of the motion to suppress evidence filed on his behalf. First, he urges that the motion was not filed within forty days after arraignment as required by Iowa Rule of Criminal Procedure 2.11(4). The district court heard the motion and ruled on the merits thereof notwithstanding the late filing. Because we elect to review the district court’s ruling on the merits, there is no basis for positing an ineffective-assistance-of-counsel claim on the tardy filing of the motion.

In reviewing the district court’s ruling on the merits, we uphold the order denying the motion to suppress. Defendant claims that he was in custody immediately prior to and at the time of his interrogation. To the extent that this circumstance required that a Miranda admonition be given, defendant concedes that this was done. He does not suggest any failure on his part to understand the significance of the Miranda admonition nor do the circumstances surrounding his interrogation give us any pause in upholding the district court’s finding that he freely waived his right to remain silent or to consult with counsel.

Defendant urges that, notwithstanding the Miranda admonition, his response to the DCI agents’ questioning was involuntary. This contention is based on three factors: (1) that the DCI agents led him to believe that the interrogation would only relate to a pornographic video and did not advise him that he was under suspicion for sexual abuse, (2) that the atmosphere in which the interrogation was conducted was coercive, and (3) the agents unduly restrained his opportunity to consult with his wife prior to questioning in violation of Iowa Code section 804.20.

The State bears the burden of proving by a preponderance of evidence that an accused’s confession is voluntary. State v. Countryman, 572 N.W.2d 553, 559 (Iowa 1997). The ultimate test in making this determination is whether, under the totality of the circumstances, the statements were the product of an essentially free and unconstrained choice, made by the subject at a time when that person’s will was not overborne or the capacity for self-determination critically impaired. State v. Snethen, 245 N.W.2d 308, 315 (Iowa 1976); State v. Cullison, 227 N.W.2d 121, 127 (Iowa 1975). With regard to defendant’s claim of deception in the interrogation, we have recognized that artifice or deception is merely one factor to be considered in judging whether a confession is voluntary based on the totality of the circumstances. See State v. Reid, 394 N.W.2d 399, 404 (Iowa 1986) (deception as to what forensic evidence revealed); State v. Oliver, 341 N.W.2d 25, 28 (Iowa 1983) (deception as to result of polygraph examination).

With regard to defendant’s contention that the circumstances surrounding the interrogation were coercive, we agree with the district court’s conclusion that no objective evidence of coercion has been presented apart from the coercive aura that inheres in any custodial interrogation by a law officer.

Defendant urges that the DCI agents unduly limited his right to consult with his wife at the fire station and thus denied him a right provided by Iowa Code section 804.20. He argues that denial of the right to “consult” with a family member as provided in that statute requires suppression of the statements made by him to the DCI agents. In State v. Tornquist, 254 Iowa 1135, 1150, 120 N.W.2d 483, 492 (1963), we concluded that a failure to allow consultation with a family member as mandated by section 804.20 was not a basis for the exclusion of a subsequent confession, but only one factor to be considered in determining whether the confession was voluntary.q

We have never declared that a violation of section 804.20, which is not also a violation of Miranda, will in all instances require suppression of a resulting confession. The evidence that we held should be suppressed in State v. Vietor, 261 N.W.2d 828, 832 (Iowa 1978), was not a confession, but rather testimony that a person accused of OWI had declined to take a chemical test.

We need not decide the extent to which a violation of section 804.20 with respect to a family member will justify suppression of the fruits of an interrogation because we conclude that, given the circumstances of the present case, section 804.20 was not violated.

Defendant’s motion to suppress must be decided in the context of the situation defendant claimed that he and his wife were in at this time. It was his contention (and also hers) that they both were in custody at the time that their right to consult under section 804.20 was allegedly denied. We believe that the right of a person in custody to consult with a family member is considerably diluted when the family member is also in custody for criminal conduct carried on jointly with the interrogated subject. Under the circumstances that existed, we are satisfied that the brief exchange of words that was permitted was sufficient to satisfy the requirements of section 804.20. We uphold the district court’s ruling denying the motion to suppress. Consideration of that issue on the merits obviates any potential ineffective-assistance-of-counsel claim based on the late filing of the motion.

III. Whether Defendant’s Confession Was the Fruit of an Illegal Search.

Defendant contends that his confession was the fruit of an illegal search and that his counsel was ineffective in failing to seek its suppression on Fourth Amendment grounds. We reject this claim for two reasons.

First, the search that the officers conducted of defendant’s residence was pursuant to a valid warrant. In determining whether probable cause has been established for the issuance of a search warrant, the test is whether a person of reasonable prudence would believe a crime was being committed on the premises to be searched or evidence of a crime could be located there. State v. Seager, 341 N.W.2d 420, 427 (Iowa 1983); State v. Post, 286 N.W.2d 195, 199 (Iowa 1979). The warrant was issued on an affidavit stating probable cause to believe that a pornographic video of a minor had been prepared on the premises and was possibly still available for seizure. The circumstances disclosed by the affidavit were sufficient to justify the issuance of the warrant.

In addition, because the interrogation of defendant in no way related to any knowledge that the DCI agents obtained from the search of his residence, the fruit of the interrogation was in no way a fruit of the search. Defendant’s trial counsel was not ineffective in failing to seek suppression of defendant’s confession on Fourth Amendment grounds.

IV. Failure to Request a Jury Instruction on Voluntariness of Defendant’s Confession.

Defendant urges that his trial counsel was ineffective in failing to request a jury instruction with respect to the voluntariness of his confession. He urges that State v. Cameron, 254 Iowa 505, 511, 117 N.W.2d 816, 819 (1962), determined that, if a subject of interrogation is denied an opportunity to consult with a family member, the accused is entitled to an instruction advising the jury that it may consider this fact in determining whether the confession was voluntary. We disagree.

In State v. Holland, 258 Iowa 206, 215, 138 N.W.2d 86, 91 (1965), we adopted the orthodox rule for determining the admissibility of the confession. The issue of whether or not a confession was voluntary is first and finally determined by the court after hearing outside the presence of the jury. Id. If found to be admissible, the weight and credibility to be given to the confession is left to the jury. In making that determination, it is proper that the jury be instructed with respect to the weight to be accorded a confession. This is particularly desirable when, as in the present case, those issues have not been developed by cross-examination of the party giving the confession. But such an instruction should not allow the jury to revisit the issues of voluntariness that have already been settled by the court. It should touch on matters that go to weight and believability of the confession, such as the defendant’s mental capacity, emotional state, and understanding of the matters included in the confession. See Iowa Crim. Jury Instruction 200.16. Defendant’s argument is not based on the failure to give that type of an instruction. His argument proposes that the court should have instructed the jury that, as a result of defendant’s inability to consult with his ■wife, his statements were the product of coercion and therefore unreliable. That type of instruction was neither supported in the evidence nor a proper allocation of the respective roles of court and jury in considering a confession. To the extent that any language contained in our Cameron opinion conflicts with this conclusion, those comments are disapproved.

V. Failure to Request a Jury Instruction on the State’s Alleged Failure to Preserve Evidence.

Defendant urges that his trial counsel was ineffective in not requesting an instruction that the act of the DCI agents in destroying their raw field notes would allow the jury to conclude that the notes would have been unfavorable to the State’s case. The only evidence bearing on this circumstance was testimony from the agents that Department of Criminal Investigation policy dictates that, once a typewritten report is made with respect to an investigation, the raw field notes be destroyed. It appears that this record destruction policy was neutral in that it pertained to all field notes and not merely notes of interviews with persons suspected of crimes. That circumstance, we believe, did not justify the giving of a spoliation instruction. See State v. Langlet, 283 N.W.2d 330, 333 (Iowa 1979).

Defendant also requested a spoliation instruction based on the failure to tape-record his interrogation. We have not been made aware of any requirement that law enforcement officers tape-record their interviews, and a failure to do so may in no way be equated with the destruction of evidence. Defendant’s counsel was not ineffective for failing to request a spoliation instruction.

VI. Failure to Challenge Alleged Prosecutorial Misconduct During Final Argument.

Defendant asserts that his trial counsel was ineffective in failing to object to statements by the prosecutor in final argument that defendant and his wife were “undercharged” and “could have been charged with fifty counts.” We dealt with an identical issue in the appeal of Tina Bowers’ conviction, State v. Bowers, 656 N.W.2d 349, 355 (Iowa 2002). We noted that the evidence against both of the Bowers was inexact as to the number of and times of the sexual encounters that took place. The State, in proving its case against both defendants, offered all available evidence of sexual abuse during a specified period of time, which largely consisted of estimates of the number of occurrences per week for a certain number of months. The evidence presented through Zebidiah’s testimony suggested that acts of sexual abuse occurred one to three times per week for approximately a year. We concluded in Tina’s appeal that this method of proof was permissible, and the comment on the multiple acts of sexual abuse revealed by the evidence was not improper. Id. We reach the same result here. We conclude that defendant’s counsel was not ineffective for failing to challenge the prosecutor’s final argument on the grounds defendant now suggests.

VII. Failing to Make an Adequate Record to Challenge District Court’s Rejection of Proposed Plea Agreement.

As a final matter, we consider defendant’s contention that his counsel was ineffective in not making an adequate record to challenge the district court’s rejection of a proposed plea agreement. As he concedes, the record is inadequate to decide this issue because neither the precise nature of the proposed plea agreement, if any, nor the district court’s response to any such agreement is shown by record evidence. In order that defendant may have an opportunity to adequately develop this matter, we preserve this claim for a possible postconviction-relief application.

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

AFFIRMED.

      . That statute provides:
      Any peace officer or other person having custody of any person arrested or restrained of the person's liberty for any reason whatever, shall permit that person, without unnecessary delay after arrival at the place of detention, to call, consult, and see a member of the person’s family or an attorney of the person’s choice, or both. Such person shall be permitted to make a reasonable number of telephone calls as may be required to secure an attorney. If a call is made, it shall be made in the presence of the person having custody of the one arrested or restrained. If such person is intoxicated, or a person under eighteen years of age, the call may be made by the person having custody. An attorney shall be permitted to see and consult confidentially with such person alone and in private at the jail or other place of custody without unreasonable delay. A violation of this section shall constitute a simple misdemeanor.
      Iowa Code § 804.20 (2001).

      . In a recent decision, we held that evidence obtained from foreign nationals in violation of their rights under the Vienna Convention on Consular Relations does not give rise to an exclusionary remedy. State v. Buenaventura, 660 N.W.2d 38, 45-46 (Iowa 2003).


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    Johnny L. PIPPINS, Appellant, v. STATE of Iowa, Appellee.
    No. 00-1588.
    Supreme Court of Iowa.
    May 7, 2003.

      Thomas H. Preacher, Bettendorf, for appellant.
    Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, William E. Davis, County Attorney, and Michael J. Walton, Assistant County Attorney, for appellee.
   LARSON, Justice.

Johnny L. Pippins was convicted of first-degree robbery and criminal gang participation. His conviction was affirmed on appeal, but the court of appeals reserved Pippins’ claim of ineffective assistance of counsel for possible postconviction proceedings. Pippins filed a postconviction-relief action, claiming: (1) his trial counsel was ineffective for failing to call several witnesses, (2) he should have been granted a new trial based on newly discovered evidence, and (3) an alleged conflict of interest of his trial attorney deprived him of his Sixth Amendment rights. The district court denied relief, and Pippins appealed, raising only the conflict-of-interest issue. The court of appeals rejected the postconviction claim, and we granted further review. We affirm the court of appeals and the district court.

I.Facts and Prior Proceedings.

Pippins was charged in September 1996, and the court appointed Murray Bell, a Davenport attorney, to represent him. The trial was originally set for December 9, 1996. On December 2, 1996, Bell filed an application to withdraw, stating:

2. That the process of discovery has revealed that one key witness for the State [Cheryl Hillman] has previously been represented by this attorney which creates a conflict of interest.
3. This attorney has consulted with attorney, Randy J. Hohenadel, who indicates he is willing to accept this case [and] will continue preparation and trial.
WHEREFORE, this attorney prays this Court for an Order Substituting Counsel and for other relief as the Court may deem appropriate.
/§/_
Murray W. Bell

No written record was made of the discussion between Bell and the court on Bell’s application to withdraw, and Pippins was not present. The court summarized the discussion in a written order dated December 2,1996:

This Court inquired of Attorney Bell as to the basis of his request. Attorney Bell told the Court that he had represented the alleged victim in this case in the past. He believes that this representation ended approximately three years ago. He did not believe that anything about that representation was involved in this cause nor would it lead to any information that would adversely affect his client or the State of Iowa. He had not spoken to the alleged victim nor could he enunciate any objection on the victim’s behalf. He further acknowledged to the Court that he could not articulate any justifiable reason for allowing his withdrawal and appointing substitute counsel. He also informed the Court that the Defendant Johnny Ledell Pippins did not request he withdraw and further his client persisted in Mr. Bell remaining counsel of record.
Given this factual situation, this Court finds no grounds for granting the Application for Substitute Counsel, and the same is hereby denied.

The trial that was set to begin on December 9 was dismissed by the State because it was unable to find a key witness. The case was refiled and set for trial. On May 5, 1997, in a brief proceeding just prior to the beginning of the trial, Bell referred to his earlier application to withdraw and asked that the December 2 ruling from that file be placed in the record. This request was granted, and no new court order was entered with respect to the application to withdraw.

The court’s refusal to appoint new counsel was the subject of Pippins’ application for postconviction relief, which stated:

Attorney Murray Bell was the Family Attorney of Cheryl Hillman, [and] was forced to represent dual loyalties. And I was not allow[ed] to be heard or even [be] present when [the judge] made his decision to ... [not] remove Murray Bell.

Two issues are raised by this application: the court’s denial of Bell’s application to withdraw and the failure of the court to afford Pippins a hearing. We do not address the issue of the court’s failure to afford Pippins a hearing because, in any event, Bell’s earlier representation of the witness, Hillman, was not a “conflict” that would create a Sixth Amendment violation.

Under our Code of Professional Responsibility,

[a] lawyer shall decline proffered employment if the exercise of independent professional judgment on behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment....

DR 5-105(B). Under EC 5-15,

[i]f a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, the lawyer must weigh carefully the possibility that the lawyer’s judgment may be impaired or loyalty divided if the employment is accepted or continued. The lawyer should resolve all doubts against the propriety of the representation.

(Emphasis added.) We assume Bell acted, as suggested by EC 5-15, in an abundance of caution when he filed his application to withdraw. However, his characterization of the circumstances as a conflict of interest does not necessarily make it so. When asked by the court for details of the conflict, Bell could not relate any. Neither Bell nor Pippins, at the hearing on his postconviction application, could give any details concerning a conflict. Attorney Bell testified in the postconviction hearing that he did not feel his relationship with Hillman, a prosecution witness, interfered with his representation of Pippins. In response to a question about why he asked to withdraw, he said,

I believe I filed some type of notice to the Court that I saw that there was a possible conflict of interest and asked for leave to withdraw, I believe.

He further testified that “I didn’t know of an actual conflict, but certainly there was ... there could be an appearance.”

II. Analysis.

This case is very different from those in which a conflict of interest is most often found: an attorney’s representation of multiple parties or a party and another principal in the same legal action. See, e.g., Holloway v. Arkansas, 435 U.S. 475, 488, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426, 437 (1978) (holding reversal required when counsel represented multiple parties); Glasser v. United States, 315 U.S. 60, 73, 62 S.Ct. 457, 466, 86 L.Ed. 680, 700 (1942) (requiring attorney to represent codefend-ant with competing interests is denial of Sixth Amendment right to effective assistance of counsel) (decision called into doubt on other grounds, Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987)). The Court in Holloway said:

Joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing.... [A] conflict may ... prevent an attorney from challenging the admission of evidence prejudicial to one client but perhaps favorable to another, or from arguing at the sentencing hearing the relative involvement and culpability of his clients in order to minimize the culpability of one by emphasizing that of another.

435 U.S. at 489-90, 98 S.Ct. at 1181, 55 L.Ed.2d at 438.

It is undisputed that, as of the time of Bell’s application to withdraw, Pippins “persisted in Mr. Bell’s remaining counsel of record,” apparently because Bell had successfully represented Pippins in an earlier criminal case. The Supreme Court has said that

[a] District Court must recognize a presumption in favor of petitioner’s counsel of choice, but that presumption may be overcome not only by a demonstration of actual conflict but by a showing of a serious potential for conflict. The evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court.

Wheat v. United States, 486 U.S. 153, 164, 108 S.Ct. 1692, 1700, 100 L.Ed.2d 140, 152 (1988). In our Watson case, we discussed the phenomena of actual and potential conflicts and the legal effects flowing from them:

A trial court has the duty sua sponte to inquire into the propriety of defense counsel’s representation when it “knows or reasonably should know that a particular conflict exists.” If an actual conflict existed and the trial court knew or should have known of the conflict, yet failed to make inquiry, reversal is required. If the record on appeal shows only the possibility of a conflict, then the case must be remanded for a determination as to whether an actual conflict existed and/or whether the defendant made a valid waiver of his right to independent counsel. If, on remand, an actual conflict is found, prejudice is presumed and reversal is mandated. If there is no indication that the trial court knew or should have known of an actual conflict, and defendant made no objection to his representation, then the defendant, in order to obtain a reversal on appeal, must prove that his counsel rendered ineffective assistance by proving that an actual conflict adversely affected counsel’s performance.

State v. Watson, 620 N.W.2d 233, 238 (Iowa 2000) (quoting Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333, 346 (1980) (citations omitted)).

Pippins contends his attorney had an actual, not just a potential, conflict of interest, and under Watson his conviction must be reversed. A determination of whether a conflict exists is a mixed question of fact and law. Cuyler, 446 U.S. at 342, 100 S.Ct. at 1715, 64 L.Ed.2d at 342. Because this is a claim of a Sixth Amendment violation, our review is de novo. Watson, 620 N.W.2d at 235; State v. Vanover, 559 N.W.2d 618, 627 (Iowa 1997). Whether the facts show an actual conflict of interest or a serious potential for conflict is a matter for trial court discretion, and we find an abuse of that discretion only when a party claiming it shows “the discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable.” Vanover, 559 N.W.2d at 627.

We have found no eases in which a lawyer’s previous representation of a prosecution witness in a totally unrelated civil case has resulted in a finding of a conflict of interest. In fact, most cases that have discussed conflicts of interest have involved an attorney who has represented a defendant or a prosecution witness in the current prosecution or simultaneous civil litigation. See, e.g., Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (defense attorney was representing murder, victim at the time of the murder; no conflict found); Wood v. Georgia, 450 U.S. 261, 267-68, 101 S.Ct. 1097, 1101-02, 67 L.Ed.2d 220, 227-28 (1981) (joint representation of defendants); Watson, 620 N.W.2d at 238-39 (defense attorney’s simultaneous representation of defendant and prosecution witness in the same case held to be actual conflict); Vanover, 559 N.W.2d at 630-31 (removal of attorney because of likelihood he would be called as a prosecution witness).

A conflict of interest, we have said, may be found in cases other than dual representation. Watson, 620 N.W.2d at 239. The test is whether “an attorney is placed in a situation conducive to divided loyalties.” Id. (quoting Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir.1991)).

Even in cases of joint representation, a conflict is not necessarily established if the defenses are not inconsistent. As the ninth circuit has observed,

common representation is not error per se. There must be some possibility of conflicting interest, and hence of prejudice. Appellants did not identify any possible divergence of interest in the trial court; their briefs to this court suggest none; the government contends that no possible conflict could have existed; and we have found none in our examination of the record.

Glavin v. United States, 396 F.2d 725, 727 (9th Cir.1968).

In Castillo v. Estelle, 504 F.2d 1243 (5th Cir.1974), the attorney was simultaneously, but in an unrelated civil case, representing a principal prosecution witness, who was the victim of the crime. The court said:

Here [the client/prosecution witness] was not only the victim but also a principal witness for the prosecution. In these circumstances, counsel is placed in an equivocal position of having to cross-examine his own client as an adverse witness. His zeal in defense of his client the accused is thus counterpoised against solicitude for his client the witness. The risk of such ambivalence is something that no attorney should accept and that no court should countenance, much less create. We hold that the situation presented by the facts of this case is so inherently conducive to divided loyalties as to amount to a denial of the right to effective representation essential to a fair trial.

Castillo, 504 F.2d at 1245.

The cases turn on the concept of “divided loyalties” as discussed in Castillo or “divergence of interests,” as discussed in Glavin. The concepts of actual or possible conflicts, for Sixth Amendment purposes, have been explained by one writer, and we believe the issue of conflicts may be clarified by applying that test. It is said that

[t]here is a possibility of conflict ... if the interests of the defendants may diverge at some point so as to place the attorney under inconsistent duties. There is an actual, relevant conflict of interest if, during the course of the representation, the defendants’ interests do diverge with respect to a material factual or legal issue or to a course of action.

Cuyler, 446 U.S. at 356 n. 3, 100 S.Ct. at 1723 n. 3, 64 L.Ed.2d at 351-52 n. 3 (Marshall, J., concurring in part and dissenting in part) (emphasis added).

The Nebraska Supreme Court has formulated this succinct definition of “conflict” for Sixth Amendment purposes, and we believe it is appropriate here. The court said:

A conflict of interest places a defense attorney in a situation inherently conducive to divided loyalties. The phrase “conflict of interest” denotes a situation in which regard for one duty tends to lead to disregard of another; where a lawyer’s representation of one client is rendered less effective by reason of his representation of another client; or where it becomes a lawyer’s duty on behalf of one client to contend for that which his duty to another client would require him to oppose.

State v. Turner, 218 Neb. 125, 354 N.W.2d 617, 622 (1984) (citations omitted).

This lack of a continuing attorney-client relationship has caused other courts to reject claims of conflict. In United States v. Soto Hernandez, 849 F.2d 1325 (10th Cir.1988), for example, the defendant claimed his attorney had a conflict of interest because the attorney had previously represented a man named Perez, who the defendant claimed had coerced the defendant into committing the present crime. The court concluded:

The case before us does not present [a conflict of interest]. The litigation in which [the defense attorney] served as counsel for Perez is totally unrelated to [the attorney’s] representation of [the defendant], A defendant who argues that an actual conflict prevented his attorney from providing effective assistance must “showQ that his counsel actively represented conflicting interests.”

Soto Hernandez, 849 F.2d at 1329 (quoting Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719, 64 L.Ed.2d at 347) (other citations omitted).

Commonwealth v. Clements, 36 Mass.App.Ct. 205, 629 N.E.2d 361 (1994), involved a defense attorney who had previously represented a principal figure in a divorce case. The court stated:

In arguing the motion for a new trial, appellate counsel for Clements conceded that there was no actual conflict but speculates that [the defense attorney] may have learned something during her representation of [a third party already convicted of a crime involving same victims] that would have aided Clements’ defense. What that may have been counsel was not able to describe to the trial judge. In the absence of explanation why [defense counsel] would not have used her best efforts to secure Clements’ acquittal, the judge, properly, concluded there had been no potential conflict of interest. In asserting a conflict of interest on the part of counsel, the defendant may not rely on speculation.

Clements, 629 N.E.2d at 365-66.

Similarly, in People v. Salsman, 185 A.D.2d 469, 586 N.Y.S.2d 154 (N.Y.App. Div.1992), the defendant claimed a conflict of interest because his attorney had represented the crime victim ten years before in a divorce proceeding. The court held there was no “significant possibility of a conflict of interest” and rejected the Sixth Amendment claim. Salsman, 586 N.Y.S.2d at 155.

III. Conclusion.

We conclude that, in this case, there was not a continuing relationship between the defense counsel and the victim. In fact, Pippins does not claim there was. There are, therefore, no divergent interests that could provide a basis to claim a Sixth Amendment violation. We therefore affirm the court of appeals and the district court.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.


author: VOGEL, Presiding Judge.

text:
    STATE of Iowa, Appellee, v. Travis William RICE, Appellant.
    No. 02-0945.
    Court of Appeals of Iowa.
    Feb. 12, 2003.
    Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Michael Bandy, Assistant County Attorney, for appellee.

      Considered by VOGEL, P.J., and ZIMMER and HECHT, JJ.
   VOGEL, Presiding Judge.

Travis Rice pled guilty to eluding in violation of Iowa Code section 321.279 (2001) and operating while intoxicated, second offense, in violation of section 321J.2. He was sentenced separately on each count. Rice now argues operating while intoxicated was a lesser included offense of eluding and that the two convictions should have been merged pursuant to section 701.9. Upon our review for correction of errors at law, State v. Bullock, 638 N.W.2d 728, 731 (Iowa 2002), we affirm.

A person convicted of eluding for failing to appropriately yield to authorities commits only a serious misdemeanor. Iowa Code § 321.279(1). A person who fails to appropriately yield while also exceeding the speed limit by twenty-five miles per hour has committed an aggravated misdemeanor. Id. at § 321.279(2). If a person is also committing a felony or violating certain statutory provisions, or if bodily injury to another results, he or she has committed a class “D” felony. Id. at § 321.279(3). Here, Rice was convicted of a “D” felony because he failed to appropriately yield to law enforcement while exceeding the speed limit by twenty-five miles per hour and while impaired in violation of section 321J.2. Iowa Code § 321.279(3)(b).

If a violation of section 321J.2 is an element of “felony” eluding under section 321.279(3)(b), then we would agree one could not commit that alternative of eluding without also necessarily violating 321J.2. See State v. Hickman, 623 N.W.2d 847, 850 (Iowa 2001) (“If the greater offense cannot be committed without also committing the lesser offense, the lesser is included in the greater.”). If that were the case, barring legislative intent to the contrary, the offenses should have been merged. Bullock, 638 N.W.2d at 731. In contrast, if a violation of 321 J.2 is only one of several possible sentencing enhancements for the crime of eluding, merger was not authorized. See State v. Beecher, 616 N.W.2d 532, 539 (Iowa 2000).

It is not readily apparent which rule should be followed in this instance, because the eluding statute was drafted in such a way as to wholly combine the elements of the offense with the degrees of sentencing. Cf. Iowa Code § 711.2 (creating the distinct crime of robbery in the first degree); Iowa Code § 708.11 (creating crime of stalking, then further defining enhancements of the offense). Upon a close reading of section 321.279 we are inclined to concur with the State’s analysis, that the statute does not define three separate offenses, but rather one offense, eluding, with three possible sentencing levels. See State v. Ayers, 590 N.W.2d 25, 29 (Iowa 1999) (noting, under a prior version of section 321.279, that “[t]he crime of eluding is either a serious or an aggravated misdemeanor”).

However, even if operating while intoxicated was a lesser-included offense of eluding under section 321.279(3)(b), the crimes may still be punished separately, as there is a clear legislative intent to impose cumulative punishments. See State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995) (noting the purpose of section 701.9 is to prevent courts from imposing a punishment greater than that contemplated by the legislature). Although both section 321.279 and section 321 J.2 were designed for the protection of the public, Schilling v. Iowa Dept. of Transp., 646 N.W.2d 69, 73 (Iowa 2002); State v. Peters, 525 N.W.2d 854, 858 (Iowa 1994), it is evident each statute is meant to protect against a different form of illegal conduct. See State v. Cartee, 577 N.W.2d 649, 654 (Iowa 1998) (holding a person is not punished twice for the same conduct where statutes “address two separate evils”). Moreover, merging operating while intoxicated convictions into eluding convictions would thwart the legislative design of 321J.2 and its subparts, which detail a number of offense-specific sentencing provisions, including mandatory mínimums and subsequent-offense enhancements. See State v. Lewis, 514 N.W.2d 63, 69 (Iowa 1994) (finding the legislature intended multiple punishments for criminal gang activity and any underlying criminal act, as courts presume each individual statute is effective in its entirety, and the legislature intended a just and fair result).

Because we find no error in the district court’s order, Rice’s sentences must be upheld.

AFFIRMED.


author: HARTEN, Judge.

text:
    In the Matter of the CIVIL COMMITMENT OF James Allen MARTIN.
    Nos. C3-02-2236, CX-03-168.
    Court of Appeals of Minnesota.
    May 20, 2003.

      Robert M.A. Johnson, Anoka County Attorney, John L. Kirwin, Special Assistant County Attorney, Minneapolis, MN, for appellant.
    Ronald L.' Greenley, Nicol & Greenley, Ltd., Assistant Anoka County Public Defender, Anoka, MN, for respondent.
    Considered and decided by HALBROOKS, Presiding Judge, HARTEN, Judge, and STONEBURNER, Judge.
   OPINION

HARTEN, Judge.

Appellant Anoka County challenges the district court’s denial of a petition to have respondent James Martin committed as a sexually dangerous person; respondent argues that Minn.Stat. § 253B.02, subds. 7a, 18c (2002), the sexually dangerous person statute, is unconstitutional as applied to him. Because we conclude that the statute is constitutional as applied to respondent but that the district court erred in finding that respondent’s acts did not constitute harmful sexual conduct and that there was not clear and convincing evidence that respondent has an inability to adequately control his sexual behavior, we reverse and remand.

FACTS

Respondent James Martin, now 34, has a history of sexual behavior issues that began in early 1991, when respondent was a senior in college. At that time, respondent was living in a dormitory with a roommate. Respondent was depressed; his grades had deteriorated, he was feeling less motivated, he had gained weight, and he had occasional thoughts of suicide.

Respondent learned that, from a friend’s dormitory room window, he could watch J.V., a female student, undress and walk around unclothed in her dormitory room. Respondent watched J.V. twice, and he began masturbating when fantasizing that J.V. was exhibitionistic and that she acted as she did because she wanted a boyfriend. Although he had not met J.V., respondent telephoned her, told her that he liked her and had seen her unclothed, and asked her for a date. J.V. refused; her refusal made respondent angry because he attributed it to his weight gain.

Respondent’s anger toward J.V. developed into hatred. He persuaded his roommate to invite J.V. to their dorm room, where respondent confronted her with disparaging remarks and racial slurs. In response, J.V. slapped respondent across the face and left. Respondent had secretly taped this incident, labeling the tape “Revenge on [J.V.].” Immediately after the incident, respondent felt victorious, but the following day he became more depressed and angry with J.V. He started blaming J.V. for everything wrong with his life and began thinking of ways to kill her.

In summer 1991, respondent learned where J.V. lived with her family and that she worked at a bar. Respondent went to the bar and approached J.V. in the parking lot. J.V. appeared uncomfortable and told respondent to stay away from her. After that encounter, respondent’s anger toward J.V. intensified.

In July 1991, respondent broke into J.V.’s family’s house when no one was home. He walked around the house, found J.V.’s bedroom, and sat on her bed with a .38 caliber pistol waiting for her to return. J.V. did not return and, after about 90 minutes, respondent left. In August 1991, respondent again visited J.V.’s family’s house. Movement inside the house frightened him away as he was cutting a screen in an attempt to break in. About a week later, he returned to J.V.’s house for the third time. He parked at the end of the driveway and walked up to the door with a hunting knife. Although he had intended to break in, he returned to his car. J.V.’s neighbor saw respondent sitting in the car at the end of the driveway. When respondent drove away, the neighbor and J.V.’s father followed him. Respondent fired three pistol shots at their car. One shot hit the windshield, but no one was injured.

Respondent remained in the area for a few days, living in his car and fantasizing about killing J.V. He was apprehended by authorities when his car got stuck in the mud. A search of the car revealed a loaded .38 caliber pistol with extra ammunition, a hunting knife, a roll of duct tape, three lengths of rope, four tent stakes, a bull whip, a bottle of Vaseline, a pair of cotton gloves, a pair of latex gloves, a spade, a video camera and tripod, and the video cassette labeled “Revenge on [J.V.].”

Becker County authorities charged respondent with two counts of second-degree assault, to which he pleaded guilty. At respondent’s request, a psychiatric examination was performed by Edwin Johnson, M.D. and R.P. Ascano, Ph.D. Respondent told the doctors that he intended to kidnap, rape, and kill J.V. using the items found in his car. Drs. Johnson and Ascano diagnosed respondent with major depressive disorder, recurrent, and avoidant personality disorder with schizotypal features. They also found a serious risk that respondent would commit suicide and a moderate risk that he would commit homicidal behavior.

In a presentence investigation report, a probation officer noted that respondent’s emotions seemed flat until he began describing the incidents involving J.V. He then became excited and appeared to enjoy recalling the humiliation and fear he inflicted on her and her family.

The Becker County District Court sentenced respondent to 72 months on one count of second-degree assault and stayed a 36-month sentence on the second count on condition that respondent successfully complete a psychological treatment program that would deal with the issues identified by Drs. Johnson and Ascano.

In February 1992, respondent entered the Minnesota Correctional Facility-St. Cloud. Despite staff recommendations, he refused to participate in any treatment programs. In 1993, respondent began engaging in obsessive behavior toward a female prison guard, J.C. Because respondent was perceived to be at risk for suicide, he was assigned to a cell near the guard desk. When J.C. was seated at the desk, respondent often stared at her, contorting himself into uncomfortable positions so he could do so. He continued to stare at her after she confronted him about his conduct. When J.C. had respondent moved to a different cell, he stood with his face up against the bars of the cell to stare at her. Respondent often asked J.C. questions about her personal life, followed her around the cell unit, stood inappropriately close to her, and stared at her body. Respondent told another inmate that, when he got out of prison, he intended to ask J.C. to marry him and to kill her if she refused. Alarmed by what respondent told him, the inmate reported respondent’s remark to prison staff. J.C. believed there was a strong possibility that respondent would pursue her when he got out of prison.

After an evaluation by the prison’s chief psychologist, respondent voluntarily agreed to participate in the sex offender program at the Minnesota Correctional Facility-Oak Park Heights. He quit the treatment program before completing it. Program staff rated respondent’s prognosis as poor, and he was transferred back to the St. Cloud facility. After less than a month, he was returned to Oak Park Heights because of predatory and assaul-tive behavior.

Because respondent had failed to complete treatment pursuant to the conditions of the stay on his sentence, the Becker County District Court executed that sentence, finding that respondent presented a clear and present danger to the public if he was released without treatment and that the interest of public safety required him to remain incarcerated.

Respondent was admitted into the Minnesota Correctional Facility-Stillwater, where he again refused to participate in sex offender treatment. He was transferred to the Prairie Correctional Facility in Appleton but, after he threatened and assaulted prison staff, he was transferred back to St. Cloud.

On 23 October 1997, respondent was released to live at his mother’s house under intensive supervised release (ISR). In prison, respondent learned that J.C. had filed a sexual harassment suit against the St. Cloud correctional facility. Unbeknownst to his ISR agent, respondent twice visited the county court administrator’s office to review J.C.’s court file.

On 31 December 1997, respondent’s ISR agent gave him permission to leave the house to run some errands. Respondent purchased a shotgun, returned to the court administrator’s office, and unlawfully took court documents from J.C.’s file, including a psychological evaluation of J.C. On 5 January 1998, respondent was apprehended at the home of a friend. Authorities found a can of pepper spray and a steak knife in respondent’s jacket pocket, and a loaded shotgun, a pair of handcuffs, and a roll of duct tape in his car. Inside the friend’s home, authorities found the stolen court file documents and two lists of names, some of which had home addresses. One list included prison officials, judges, attorneys, and others who had been involved with respondent during his time in the criminal justice system; the other included people with the same last name as J.C. who lived near the St. Cloud correctional facility.

Respondent reported to the ISR agent that he initially intended to go after J.C. and that he had seriously considered killing himself. He pleaded guilty to the federal charge of being a felon in possession of a firearm and received a 52-month sentence. He also pleaded guilty to the state charge of gross misdemeanor interference with property in official custody; the court imposed a one-year sentence to run concurrently with the federal sentence.

Over the next three years, in county jail and federal prison, respondent had repeated disciplinary problems and received no psychological or sex offender treatment. He was released from federal prison in December 2001 and taken to the Minnesota Security Hospital (MSH). His behavior was again out of control; his behavior analyst noted that he remained at high risk for assaultive and dangerous behavior.

On 12 December 2001, appellant Anoka County filed a petition to have respondent committed as a sexually dangerous person (SDP) or as mentally ill and dangerous to the public (MI & D). The district court appointed forensic psychologist James Gil-bertson, Ph.D., to perform a psychological evaluation of respondent, and respondent selected forensic psychologist Paul Reit-man, Ph.D., to perform an evaluation on his behalf. Dr. Gilbertson concluded that respondent met the statutory requirements for commitment as a SDP, but Dr. Reitman concluded that he did not.

Trial on the commitment petition lasted from 18 March through 1 April 2002. On 30 July 2002, the district court declined to commit respondent as a SDP but committed him as MI & D to the MSH. MSH doctors evaluated respondent and concluded that he was not properly committed as MI & D because he was not mentally ill.

On 27 November 2002, the district court issued an order declining to commit respondent as MI & D. Appellant then moved to have the district court’s SO July 2002 order amended to commit respondent as a SDP. On 20 December 2002, the district court denied appellant’s motion. Appellant now challenges the district court’s decision not to commit respondent as a SDP; respondent contends that the relevant statutes are unconstitutional as applied to him.

ISSUES

1. Did the district court err in finding that respondent’s conduct toward J.C. was not “harmful sexual conduct” within the meaning of Minn.Stat. § 253B.02, subd. 7a(a) (2002), and Minn.Stat. § 253B.02, subd. 18c(a)(l) (2002)?

2. Did the district court err in concluding that evidence of other possible causes of serious emotional harm rebutted the Minn.Stat. § 253B.02, subd. 7a(b) (2002), presumption of a substantial likelihood that J.C., a victim of respondent’s stalking/harassment, suffered serious physical or emotional harm?

3. Did the district court err in determining that the record does not support a conclusion that respondent cannot adequately control his sexual impulses and behavior?

4. Is Minn.Stat. § 253B.02, subds. 7a, 18c (2002), constitutional as applied to respondent?

ANALYSIS

1. Harmful Sexual Conduct

Minn.Stat. § 253B.02, subd. 18c (a) (2002) provides that a ‘sexually dangerous person’ means a person who * * * has engaged in a course of harmful sexual conduct as defined in subdivision 7a * * Minn.Stat. § 253B.02, subd. 7a (2002), provides that:

(a) “Harmful sexual conduct” means sexual conduct that creates a substantial likelihood of serious physical or emotional harm to another.
(b) There is a rebuttable presumption that [certain] conduct * * * creates a substantial likelihood that a victim will suffer serious physical or emotional harm * * * [i]f the conduct was motivated by the person’s sexual impulses * * *

The district court based its determination that respondent is not a sexually dangerous person in part on its conclusion that he did not engage in harmful sexual conduct with respect to J.C. in 1997 and 1998. A district court’s conclusions regarding whether the record supports, by clear and convincing evidence, the requirements of the SDP statute are questions of law that we review de novo. In re Linehan, 544 N.W.2d 308, 312 (Minn.App.1996), aff'd 557 N.W.2d 171 (Minn.1996), vacated on other grounds, 522 U.S. 1011, 118 S.Ct. 596, 139 L.Ed.2d 486 (1997).

The district court concluded that respondent’s behavior toward J.C. after he was released from prison in 1997 was not “harmful sexual conduct” within the meaning of Minn.Stat. § 253B.02, subd. 7a, because it was motivated by revenge, not by sexual impulses. But the record shows that respondent violated the terms of his supervised release, took court documents relating to J.C.’s sexual harassment case from the administrator’s office, and was apprehended possessing a shotgun, handcuffs, duct tape, mace, and a steak knife. Moreover, respondent professed to Dr. Reitman in 1998 that he was still sexually attracted to J.C. and that he fantasized about her; Dr. Reitman testified that respondent’s behavior toward J.C. in 1997 closely mirrored his conduct toward J.V. in 1991. Drs. Reitman and Gilbertson both concluded that respondent’s behavior toward J.C. after he left prison in 1997 was motivated by sexual impulses.

Respondent has a documented history, beginning with his behavior toward J.V. and continuing through various female correctional officers, of sexual obsession toward women. Accordingly, we conclude that respondent’s conduct toward J.C. when he was released from prison in 1997 was motivated by sexual impulses, as found by both experts.

2. Presumption of Likelihood of Serious Emotional Harm

Minn.Stat. § 253B.02, subd. 7a(b) provides:

There is a rebuttable presumption that [certain] conduct * * * creates a substantial likelihood that a victim will suffer serious physical or emotional harm * * *. If the conduct was motivated by the person’s sexual impulses or was part of a pattern of behavior that had criminal sexual conduct as a goal, the presumption also applies to conduct described in section * * * 609.749, subdivision 3 or 5 (HARASSMENT AND STALKING).

The district court found that respondent’s conduct towards J.C. while he was at the St. Cloud correctional facility was harassment and stalking, but concluded that the statutory presumption was rebutted by the fact that it was impossible to tell whether J.C.’s emotional harm was caused by respondent or by the hostile work environment then existing at the facility.

Our examination of the evidence leaves no doubt that respondent’s actions toward J.C. while he was in prison created a substantial likelihood of serious emotional harm to her. The incident reports she filed regarding his conduct show that he systematically and continuahy harassed her and that his harassment left her seriously emotionally upset and fearing for her life. We note that the Minn.Stat. § 253B.02, subd. 7a(b), presumption is not that a victim actually suffers serious emotional harm as a result of a defendant’s conduct; it is that the conduct creates a substantial likelihood of serious emotional harm. Here, respondent’s conduct not only created a substantial likelihood of serious emotional harm; his conduct actually inflicted such harm on J.C., thereby surpassing the statutory presumption. On this record, we conclude that the fact that J.C. may simultaneously have been subjected to sexual harassment from her coworkers is insufficient to overcome the presumption that respondent’s conduct was harmful sexual conduct within the meaning of Minn.Stat. § 253B.02, subd. 7a.

3. Ability to Control Sexual Impulses or Behavior

[T]he Sexually Dangerous Person [SDP] Act, Minn.Stat. § 253B.02, subd. 18c (1998), requires a finding that a person lacks some control over his or her sexually dangerous actions * * *.

In re Linehan, 594 N.W.2d 867, 868 (Minn.1999) (Linehan IV).

[T]he SDP Act allows civil commitment of sexually dangerous persons who have engaged in a prior course of sexually harmful behavior and whose present disorder or dysfunction does not allow them to adequately control their sexual impulses * * *.

Id. at 876. An appellate court determines whether a commitment is supported by clear and convincing evidence. See, e.g., id. (reviewing whether lack of adequate control over sexually harmful behavior was established by clear and convincing evidence). The district court concluded that the record did not demonstrate by clear and convincing evidence that respondent could not adequately control his sexual impulses or behavior.

The evidence provided by both Drs. Gil-bertson and Reitman was that respondent suffers from adult antisocial behavior and a personality disorder, not otherwise specified, with paranoid, narcissitic, and antisocial traits. Dr. Reitman testified that respondent’s psychological disorders affect his ability to control his harmful sexual behavior (stalking-type behavior), and quantified the inability to control at about 50%. Dr. Reitman also testified that im-pulsivity and inability to defer acting out are characteristics of respondent’s personality disorder. Dr. Gilbertson testified that respondent’s psychological disorders affect his ability to control his harmful sexual behavior and stated that respondent lacks adequate control over his ability to refrain from engaging in harmful sexual behavior.

A review of respondent’s sexual behavior since 1991 supports the experts’ opinions that respondent cannot adequately control his sexual impulses: he broke into one victim’s home repeatedly after planning and equipping himself to abduct, rape, and murder her; he stalked and harassed a female guard at the facility where he was incarcerated; he told another inmate that he would kill the guard if she refused to marry him; he later bought a shotgun, stole court documents relating to the guard, and compiled a list of people with the guard’s last name who lived near the facility; he has continually engaged in harassing, violent, and threatening behavior to females in correctional facilities and MSH.

Again, we conclude that the evidence here compels a finding that respondent’s personality disorder does not allow him to adequately control his harmful sexual impulses and behavior.

[T]he SDP Act allows civil commitment of sexually dangerous persons * * * whose present disorder or dysfunction does not allow them to adequately control their sexual impulses, making it highly likely that they will engage in harmful sexual acts in the future.

Id. at 876. Having concluded that respondent did not lack adequate control of his sexual impulses, the district court did not determine the likelihood of his engaging in harmful sexual acts in the future. In light of our decision to the contrary, we remand to the district court to determine the likelihood of respondent’s future harmful sexual acts.

4. Constitutionality of SDP Act as Applied to Respondent

Respondent argues that, if this court concludes that he is subject to commitment as an SDP, Minn.Stat. § 253B.02, subds. 7a, 18c, is unconstitutional as applied to him because it is void for vagueness and because it violates substantive due process, procedural due process, double jeopardy, and equal protection. We see no merit in these claims.

“Courts should exercise extreme caution before declaring a statute void for vagueness.” Hard Times Cafe, Inc. v. City of Minneapolis, 625 N.W.2d 165, 171 (Minn.App.2001) (citation omitted). Respondent argues that the phrase “harmful sexual conduct” in Minn.Stat. § 253B.02, subd. 7a, is vague because, in his case, it is applied to nonsexual conduct. He claims that he is being committed as a sexually dangerous person when he has not been convicted of any sexual offense. But respondent pleaded guilty to two counts of second-degree assault and admitted that his goal in assaulting J.V. was to commit criminal sexual conduct by raping her. We conclude that the phrase “harmful sexual conduct” is not vague as applied to respondent.

Respondent’s substantive due process argument was explicitly addressed by the Minnesota Supreme Court in Linehan IV, 594 N.W.2d at 872-876.

States have a compelling interest in both protecting the public from sexual violence and rehabilitating the mentally ill. * * * [The issue is] whether * * * the SDP Act is narrowly tailored to meet these interests.
⅜ ⅜ ⅜ ⅜
* * * [W]e held in Linehan III [In re Linehan, 557 N.W.2d 171 (Minn.1996) ] that the newly enacted SDP Act did not require proof that the proposed patient has an inability to control his or sexual impulses in order to uphold civil commitment. * * *
* * * *
* * * [This] provision ⅜ * * should be read very narrowly * ⅜ ⅜ to mean only that the state does not need to prove that a person meets the * * * utter inability standard^] * * * Such a reading harmonizes all parts of the statute and acknowledges the legislature’s intent to abandon the utter lack of control test required for commitments under the [prior act] while insuring that the statute is narrowly tailored.

Id. (citations and quotations omitted). We conclude that the SDP Act does not violate substantive due process.

Nor does it violate procedural due process. Respondent argues that he is entitled to due process on the criminal sexual conduct charges before he is committed on the basis of those charges. But the basis for respondent’s commitment is that, upon his own guilty pleas, he was convicted of two counts of assault in the second degree — both assaults being motivated by the goal of committing acts of criminal sexual conduct. See Minn.Stat. § 253B.02, subd. 7a(b) (rebuttable presumption that assault in the second degree, if motivated by sexual impulses or part of a pattern of behavior that has criminal sexual conduct as its goal, creates a substantial likelihood that a victim will suffer serious physical or emotional harm and is therefore harmful sexual conduct). We conclude that respondent received due process on the assault charges; his rights to procedural due process have not been violated.

Finally, respondent argues that his commitment under the SDP Act violates double jeopardy and equal protection. The Minnesota Supreme Court addressed both arguments in In re Linehan, 557 N.W.2d 171 (Minn.1996), vacated on other grounds, 522 U.S. 1011, 118 S.Ct. 596,189 L.Ed.2d 486 (1997) (Linehan III). Protections against double jeopardy are not implicated by the SDP Act, because the purpose of commitment under the SDP act is treatment and not punishment. Id. at 188. The SDP Act’s classification of sexually dangerous persons is justified by “the reasonable connection between a proposed patient’s mental disorder and the state’s interests in public protection and treatment.” Id. at 187.

DECISION

We reverse the district court’s determinations that precluded respondent’s commitment under the SDP Act, and remand for the district court to determine the remaining issue of whether it is highly likely that respondent will engage in future harmful sexual conduct. The district court may, in its discretion, reopen the record. We also conclude that none of respondent’s constitutional challenges to the SDP Act has merit.

Reversed and remanded.

      . Both parties filed appeals, which were consolidated by this court’s order.

      . The initial petition that was filed on 12 December 2001 was dismissed without prejudice on 5 March 2002 for failure to comply with statutory time periods. Appellant refiled a nearly identical petition later that day.

      . In view of its holding, the district court did not address the constitutionality of the SDP Act. Because the parties presented and briefed the constitutional issues for this appeal, we review them in the interests of justice under Minn. R. Civ.App. P. 103.04.


author: G. BARRY ANDERSON, Judge.

text:
    STATE of Minnesota, Respondent, v. Mario Gerald GRILLO, Appellant.
    No. C5-02-858.
    Court of Appeals of Minnesota.
    May 20, 2003.

      Mike Hatch, Attorney General, St. Paul, MN, and Susan Gaertner, Ramsey County Attorney, Darrell C. Hill, Assistant Ramsey County Attorney, St. Paul, MN, for respondent.
    Bonnie S. Hoole, F. Clayton Tyler, Minneapolis, MN, for appellant.
    Considered and decided by STONEBURNER, Presiding Judge, G. BARRY ANDERSON, Judge, and WRIGHT, Judge.
   OPINION

G. BARRY ANDERSON, Judge.

Appellant was convicted of Minn.Stat. § 624.713, subd. 1(b) (2000), which prohibits firearm possession by individuals previously convicted of or adjudicated delinquent for a crime of violence. Because the predicate offense rendering appellant ineligible to possess a firearm was not classified as a “crime of violence” until after appellant had been adjudicated, appellant argues that retroactive classification of the predicate offense as a violent crime and his subsequent prosecution and conviction for unlawful possession of a firearm was an unconstitutional ex post facto application of the law. We affirm.

FACTS

On August 18, 2000, Officer Jeremy Ryan observed and stopped a vehicle with a broken taillight. Appellant Mario Grillo was the driver of the vehicle. Ryan discovered that appellant had no automobile insurance, and he began making arrangements to have appellant’s vehicle towed. While performing an inventory search of the vehicle, Officer Daniel Collier discovered a .40-caliber automatic pistol in the passenger compartment.

In 1993, appellant was adjudicated delinquent for felony theft of a motor vehicle, an offense that was not then characterized as a “crime of violence.” See Minn.Stat. § 624.712, subd. 5 (2000). Effective January 1, 1995, Minn.Stat. § 624.713, subd. 1(b) (1995) was amended to include juveniles adjudicated delinquent for commission of violent crimes as a class of persons prohibited from possessing a firearm. Subsequent to his discharge from court supervision in August 1993, Minn.Stat. 624.712, subd. 5 was amended to include felony auto theft in the list of violent crimes for purposes of ineligible firearm possession. Minn.Stat. § 624.712, subd. 5. Appellant was arrested for the current prohibited firearms charge in 2000 — less than ten years after discharge from supervision. Thus, on the date of his arrest, appellant was within the ten-year prohibition period relating to possession of a firearm.

Appellant moved the district court to dismiss the charge of ineligible possession of a firearm, arguing that prosecution of this offense was a violation of the constitutional prohibition against ex post facto laws. The matter was submitted to the district court on stipulated facts pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). Following the stipulated trial, appellant was found guilty of ineligible possession of a firearm. This appeal followed.

ISSUES

I. Was the retroactive reclassification of appellant’s juvenile offense as a “crime of violence” an unconstitutional ex post facto application of the law?

II. Was the application of Minn.Stat. § 624.713, subd. 1(b) (2000), based on appellant’s commission of a “crime of violence” an unconstitutional ex post facto application of the law?

III. Was appellant denied his right to due process?

ANALYSIS

I.

In evaluating constitutional challenges, the interpretation of statutes is a question of law which we review de novo. In re Blilie, 494 N.W.2d 877, 881 (Minn.1993). “Minnesota statutes are presumed constitutional and” will be declared unconstitutional “only when absolutely necessary.” In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989) (citing City of Richfield v. Local No. 1215, 276 N.W.2d 42, 45 (Minn.1979)).

Both the United States and Minnesota Constitutions prohibit enactment and application of ex post facto laws. U.S. Const. art I, § 9 Cl. 3; Minn. Const. art. I, § 11. When examining a state constitutional provision, a decision of the United States Supreme Court interpreting a parallel provision of the federal constitution is of persuasive, although not controlling, force. State v. Fuller, 374 N.W.2d 722, 727 (Minn.1985).

Appellant argues that the application of a statute classifying his motor-vehicle-theft offense as a “crime of violence” and prohibiting his possession of a firearm, after his adjudication of delinquency and discharge, was unconstitutional. An ex post facto law “renders an act punishable in a manner in which it was not punishable when it was committed.” Starkweather v. Blair, 245 Minn. 371, 386, 71 N.W.2d 869, 879 (1955). An ex post facto law exists where the law applies to events occurring before its enactment and disadvantages the offender affected by it. Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981).

Reclassification of appellant’s crime as one of violence did not expose him to immediate punitive consequences. Appellant was, by virtue of the inclusion of his offense as a “crime of violence,” not permitted to possess a firearm for the statutory period and was subject to prosecution for doing so. Thus, the application of Minn.Stat. § 624.712, subd. 5 (2000) to include appellant’s past offense as a crime of violence merely exposed appellant to possible punishment for a future violation of Minn.Stat. § 624.713, subd. 1(b) (2000), i.e., possession of a firearm.

II.

Appellant argues that prosecution under Minn.Stat. § 624.713, subd. 1(b) was unconstitutional because disqualification from firearm possession was not a punishment contemplated for commission of auto theft at the time appellant was adjudicated. Minn.Stat. § 624.718, subd. 1(b) does not attempt to punish, as a crime, an act that was innocent when committed. See Collins v. Youngblood, 497 U.S. 37, 52, 110 S.Ct. 2715, 2724, 111 L.Ed.2d 30 (1990) (unconstitutional ex post facto laws punish criminally an act that was innocent at the time of commission). Rather, the crime for which appellant was convieted-possessing a firearm after commission of a violent crime-was punishable at the time that it was committed. Appellant is not being punished, under this statute, for an act committed in the past; rather, the statute subjects him to punishment for subsequent conduct — illegally carrying a firearm. A statute can be based on prior conduct so long as it applies to, and is triggered by, conduct occurring after its enactment. State v. Harrington, 504 N.W.2d 500, 503 (Minn.App.1993), review denied (Minn. Sep. 30, 1993). The conduct for which appellant was convicted could only have occurred after the enactment of the challenged statute. Thus, Minn.Stat. § 624.713, subd, 1(b) punishes present or future conduct — possession of a firearm by a person adjudicated for commission of a violent offense — and is not an ex post facto law, facially or as applied to appellant.

III.

Appellant also contends that he had no effective notice of the firearms restriction and thus his right to due process has been violated. Minn.Stat. § 624.713, subd. (b) clearly states that a person adjudicated delinquent for commission of a violent crime is prohibited from carrying a firearm. Although Minn.Stat. § 242.31, subd. 2a (2000) states that notice of the restriction shall be provided in the notice of discharge, this was impossible in appellant’s case because section 624.713, subd. (b) did not apply to appellant at the time of his delinquency adjudication. But Minn.Stat. § 624.713, subd. 3(a) (2000) provides that failure to give notice does not affect the applicability of the statute. In addition, it is a long-held principle in Minnesota that ignorance of the law is not a defense when it would have been possible, had appellant made the effort to do so, to learn of the existence of the prohibition. See State v. King, 257 N.W.2d 693, 697-98 (Minn.1977) (holding ignorance of the law is no excuse, and an individual cannot be heard to complain that he was without notice of a criminal statute when, had appellant made an effort to ascertain information, he would have been put on adequate notice).

DECISION

We conclude that neither of the challenged statutes, standing alone or in combination, violates the ex-post-facto-low prohibition of the United States or Minnesota constitutions, either facially or as applied to this appellant.

Affirmed.

      . Minn.Stat. § 624.712, subd. 5 was amended in 1996 to include, as a violent crime, "felony theft involving the intentional taking or driving of a motor vehicle without the consent of the owner or the authorized agent of the owner[.]”


author: PORITSKY, Judge.

text:
    Patricia Rogers WILLIAMSON, a/k/a Patricia Rogers, Respondent, v. Robert PRASCIUNAS, et al., Appellants.
    No. CX-02-1830.
    Court of Appeals of Minnesota.
    May 20, 2003.

      Robert E. Lieske, Wagner, Falconer & Judd, Ltd., Minneapolis, MN, for respondent.
    Jon Breyer, Kathleen M. Loucks, Gisla-son & Hunter, LLP, Minnetonka, MN, for appellants.
    Considered and decided by MINGE, Presiding Judge, KALITOWSKI, Judge, and PORITSKY, Judge.
   OPINION

PORITSKY, Judge.

Appellants Robert and Rebecca Prasciu-nas challenge (1) the district court’s decision to award respondent Patricia Rogers Williamson damages for civil conversion and (2) the court’s valuation of the property at issue. Respondent notes review of the district court’s denial of her motion to amend the complaint to seek punitive damages. Because we conclude that the district court: (1) properly ruled that appellants’ fraudulent concealment tolled the statute of limitations, (2) correctly valued the property, and (3) acted within its discretion when it denied punitive damages, we affirm in all respects.

FACTS

On June 29, 1987, respondent Patricia Rogers Williamson, then known as Patricia Rogers, sold her Edina home to appellants Robert and Rebecca Prasciunas. Due to complications with Williamson's new home, she arranged a rental agreement with the Prasciunases until July 6,1987. According to Williamson, the moving van that she had scheduled to arrive for 8:00 a.m. that day did not arrive until 1:00 p.m., causing her moving-out to overlap with the Prasci-unases’ moving-in. Apparently, appellant Robert Prasciunas was very upset over this turn of events.

The home contained a small wall safe in the basement. In the safe Williamson had two pieces of diamond jewelry: a diamond solitaire ring from a previous marriage and an heirloom diamond-encrusted watch that Williamson had inherited from her mother. Before leaving, Williamson tried to remove her jewelry from the safe but could not open it. Her son assisted her, but their efforts were unsuccessful. Williamson asked Mr. Prasciunas to help, but he, too, could not open the safe. Before Williamson left, she entrusted the Prasciu-nases with the safe’s combination and told them that she was leaving some jewelry in the safe.

According to the Praciunases, Williamson called them the next day to see if they had opened the safe. They denied opening the safe. Williamson claimed that she called three times over the next two weeks to arrange a time for a locksmith to open the safe, but could not arrange a convenient time to do so. Two years passed before she sought return of her jewelry. In July 1989, Mr. Prasciunas admitted to Williamson that he had opened the safe but claimed there was no jewelry in it. He told Williamson, “It’s not like there were diamonds or anything in there.” Williamson sought legal advice. Her attorney advised Williamson that her only recourse was to file a criminal complaint with local authorities. On July 17, 1989, Williamson filed a complaint with the Edina Police Department in an attempt to get her jewelry back. In this complaint, Williamson listed the total value of the jewelry at $12,000. When the Edina police questioned the Prasciunases, they denied knowledge or possession of the jewelry. Unable to substantiate Williamson’s claims, the investigating officer told her there was nothing else they could do. After the Edina police completed their investigation, Mr. Praciunas called Williamson and threatened her with a lawsuit for harassment. In the call, he was abusive and screamed at her never to contact him or his wife again.

Nearly twelve years passed. On March 1, 2001, Ms. Prasciunas’s sister contacted Williamson with news that the Prasciunas-es did, in fact, have possession of the jewelry. Williamson reported this to the Edi-na Police Department. When confronted with this knowledge, the Prasciunases turned over the jewelry to the police. The Edina police returned the jewelry to Williamson and, at their request, she had the jewelry appraised at a total value of $12,000.

Williamson initiated the present proceeding in July 2001, claiming conversion, theft, intentional infliction of emotional distress (IIED), and defamation. The Pras-ciunases did not file an answer, but responded by filing a motion to dismiss on the ground that the statute of limitations barred Williamson’s claims. The district court denied the Prasciunases’ motion to dismiss.

Subsequently, the Prasciunases filed a summary judgment motion, again asserting, inter alia, that Williamson’s claim for conversion was barred by the statute of limitations. Williamson filed a responsive motion seeking summary judgment on her conversion claim and permission to amend her complaint to ask for punitive damages. The district court rejected the Prasciunas-es’ statute of limitations defense and granted summary judgment for Williamson on her conversion claim. Specifically, the district court reasoned that, because the Prasciunases steadfastly denied possession of Williamson’s jewelry, they fraudulently concealed any cause of action she may have had. The district court explained that, had Williamson filed suit in 1989, any conversion claim would likely have been dismissed. As to the parties’ other claims, the district court granted summary judgment for the Prasciunases on Williamson’s claims for IIED because it found that she had failed to meet the high evidentiary threshold required to submit that claim to a fact-finder. The court also granted summary judgment for the Prasci-unases on Williamson’s claim for defamation because the two-year statute of limitations on her defamation claim had expired. Finally, the court denied Williamson’s motion seeking to add a claim for punitive damages. This appeal followed.

ISSUES

I. Did the district court properly rule that appellants’ fraudulent concealment of the theft tolled the statute of limitations?

II. Did the district court properly set the value of the jewelry at $12,000?

III. Did the district court act within its discretion when it denied respondent’s motion for permission to seek punitive damages?

ANALYSIS

I

When reviewing a summary judgment ruling, this court examines the record to determine if genuine issues of material fact remain for trial and if the district court properly applied the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). We consider evidence in a light most favorable to the responding party and resolve any factual doubts in its favor. Funchess v. Cecil Newman Corp., 682 N.W.2d 666, 672 (Minn.2001).

The supreme court has defined conversion as

an act of willful interference with [the personal property of another], done, without lawful justification, by which any person entitled thereto is deprived of use and possession, and the exercise of dominion and control over goods inconsistent with, and in repudiation of, the owner’s rights in those goods.

Christensen v. Milbank Ins. Co., 658 N.W.2d 580, 585 (Minn.2003) (quotations omitted).

Conversion occurs where one willfully interferes with the personal property of another “without lawful justification,” depriving the lawful possessor of “use and possession.” DLH, Inc., v. Russ, 566 N.W.2d 60, 71 (Minn.1997) (quotation and citation omitted). ‘Wrongfully refusing to deliver property on demand by the owner constitutes conversion.” Molenaar v. United Cattle Co., 553 N.W.2d 424, 430-31 (Minn.App.1996), review denied (Minn. Oct. 15, 1996) (citation omitted). The elements of common law conversion are: (1) plaintiff holds a property interest; and (2) defendant deprives plaintiff of that interest. Olson v. Moorhead Country Club, 568 N.W.2d 871, 872 (Minn.App.1997), review denied (Minn. Oct. 31, 1997). Good faith is not a defense to a claim of conversion. Dairy Farm Leasing Co. v. Haas Livestock Selling Agency, 458 N.W.2d 417, 419 (Minn.App.1990).

The Prasciunases do not dispute that they converted Williamson’s jewelry. Indeed, their brief contains numerous references describing their conduct as “conversion.” Their sole defense to the conversion claim is that it is barred by the statute of limitations. The district court rejected this argument, concluding that the Praciunases’ fraudulent concealment tolled the statute of limitations. We agree and affirm the district court on this issue.

We begin our analysis of when the statute of limitations began to run in this case by noting that there is a marked difference between cases where fraudulent concealment is present and cases where it is not. In Herrmann v. McMenomy & Severson, 590 N.W.2d 641 (Minn.1999), the Minnesota Supreme Court noted the difference. First, the court stated the general rule:

A cause of action accrues and the statute of limitations begins to run when the cause of action will survive a motion to dismiss for failure to state a claim upon which relief can be granted.

Id. at 643 (footnote omitted). But in the same paragraph, the court says that cases of fraudulent concealment are an exception to the rule. “Thus, in the absence of fraudulent concealment, the running of the statute is not tolled by [the plaintiffs] ignorance of the cause of action.” Id. (emphasis added) (footnote omitted).

In Haberle v. Buchwald, 480 N.W.2d 351 (Minn.App.1992), review denied (Minn. Aug. 4, 1992), this court made a careful analysis of the two different rules. First, we stated the general rule, which is that in analyzing when the statute of limitations starts to run, the inquiry centers solely on the plaintiffs knowledge' — what the plaintiff knew or should have known:

Ignorance of a cause of action not involving continuing negligence or fraud does not toll accrual of a cause of action. When determining whether a plaintiff was- “actually aware” of the facts upon which a claim is based, the question is whether the plaintiff actually knew or should have known.

Id. at 356 (emphasis added) (citations omitted). We then noted that in cases of fraudulent concealment, the inquiry shifts to include not only an examination of the plaintiffs knowledge, but also an examination of the defendant’s conduct:

A statute of limitations may be tolled if the cause of action is fraudulently concealed by the defendant. To establish fraudulent concealment, a plaintiff must prove there was an affirmative act or statement which concealed a potential cause of action, that the statement was known to be false * * *, and that- the concealment could not have been discovered by reasonable diligence.

Id. at 357 (citations omitted). In Collins v. Johnson, 374 N.W.2d 536 (Minn.App.1985), review denied (Minn. Nov. 26, 1985) we pointed out that the concealment had to be fraudulent or intentional. Collins, 374 N.W.2d at 541.

Thus, as Herrmann, Haberle, and Collin’ s indicate, in cases where fraudulent concealment exists, the issue is not analyzed under the rule that the statute of limitations begins to run when the plaintiffs claim could survive a motion to dismiss nor does the court focus solely on what the plaintiff know or should have known. Instead, the proper analysis is the application of the rule set out in Haberle. Thus, for Williamson to make a valid claim of fraudulent concealment sufficient to toll the statute of limitations, she must show that: (1) the Prasciunases made a statement or statements that concealed Williamson’s potential cause of action, (2) the statement or statements were intentionally false, and (3) the concealment could not have been discovered by reasonable diligence. See Haberle, 480 N.W.2d at 357. In our opinion, the undisputed facts in this case show that all three elements are present.

The Prasciunases’ argument focuses on the first element. They argue that, notwithstanding they lied about an essential fact, their lies did not conceal the cause of action. In effect, they argue that Williamson knew they had her jewelry, and therefore she could have brought suit in 1989. They say, with no apparent embarrassment:

It is uncontroverted that Mrs. Williamson placed the jewelry in the safe and locked it. Mrs. Williamson gave the combination to the Prasciunases and, when asked to relinquish the contents of the safe, they refused, denying that they possessed the jewelry. Despite the Pra-ciunases’s efforts at concealment, Mrs. Williamson had all the vital information needed to file a complaint. * * * Here, there are no facts concealed by the Prasciunases that would have prevented Mrs. Williamson from establishing a pri-ma faci[e] case of conversion in 1989. There were no facts learned by Mrs. Williamson in 2001 that she did not already know in 1989. The return of the jewelry simply confirmed that which Mrs. Williamson already knew — that the Prasciunases possessed her jewelry. While the Praciunases’ denials may have thwarted attempts at retrieving the jewelry, the denials did nothing to vitiate a complaint based on Mrs. Williamson’s knowledge of the claim.

Initially, we note that the Prasciunases seek to apply the wrong test. As we stated above, the test is not whether or not Williamson could have made a prima facie case in 1989. The correct test is whether the Praciunases concealed the cause of action. In any event, the linchpin of their argument is that, in 1989, Williamson knew that the Prasciunases were lying when they said they did not have the jewelry, and because she could sue them, the statute began to run. Understandably, they wish to deflect the inquiry away from then-conduct and to focus solely on what Williamson knew or should have known.

This position is not persuasive. As long as the Prasciunases concealed the essential fact that they had her jewelry, Williamson did not actually know that they had it. She may have suspected that they had the jewelry, but she had no first-hand knowledge, or even hearsay knowledge, of that fact. Mere suspicion, in a case of fraudulent concealment, is not sufficient to stop the tolling of the statute of limitations. Bradley v. Maryland Cas. Co., 563 F.Supp. 602, 607 (D.Del.1983). And the reason Williamson did not actually know that the Praciunases had her jewelry was that their continued fraudulent conduct concealed that fact from her.

Moreover, after the Edina police contacted the Prasciunases in 1989, Mr. Pras-ciunas called Williamson, screamed at her to never contact them again, and threatened her with a lawsuit for harassment. In the face of these facts, the Prasciunases make the astonishing argument that she should have sued them in 1989, when she had only her suspicions to support her claim and would most likely have been met by the Prasciunases’ repeated, and very successful, mendacity. To accept the Prasciunases’ argument that Williamson was required to sue them in 1989 would be to reward them for their twice-wrongful conduct. Accordingly, we conclude that when the Praciunases lied to Williamson and to the Edina police about the essential fact that they possessed the jewelry, the Praciunases fraudulently concealed Williamson’s cause of action.

The second element that Williamson must show in order to make out a case of fraudulent concealment — that the Praciu-nases’ statements were intentionally false — is clearly present: The Praciunases do not dispute that they lied to both Williamson and to the Edina police.

The third element Williamson must show is that she acted with reasonable diligence to discover her cause of action. That she did so is clear from the record. In July 1989, Mr. Prasciunas told Williamson that he had opened the safe and that there was no jewelry’ in it. She thereupon contacted an attornéy, who demanded that the Prasciunases return the jewelry. Without admitting that the Prasciunases had possession of the jewelry (thus resulting in a further concealment of the truth), their attorney notified Williamson’s attorney of claims that the Prasciunases would assert against Williamson if she sued them. Williamson also contacted the Edi-na police, who investigated her report. When Williamson finally learned the true facts in 2001, she went to the Edina police again, and the jewelry was returned to her. The record amply supports the district court’s conclusion that Williamson acted with due diligence to learn of the facts that would constitute her cause of action.

Finally, the Prasciunases imply that they were keeping the jewelry to offset the damages they incurred ■ when they were forced to correct the defects that Williamson failed to disclose when they purchased the house. They allege that they kept the jewelry on the advice of counsel. In Mr. Prasciunas’s affidavit, he claims that after Williamson’s July 1989, phone call, he retained the services of an attorney, and that this attorney advised him to retain possession of the jewelry until Williamson filed suit, then counterclaim for damages. But we find it difficult to believe that the attorney advised the Prasciunases to lie to the police. The fact that the Praciunases never filed suit for the alleged damages that they claim to have suffered undercuts their claim that they were holding the jewelry as some sort of security. Moreover, after the statute of limitations expired on any potential claims by the Prasciunases, they had no lawful reason to retain possession of the jewelry. In sum, we conclude that district court properly ruled that the Pra-ciunases’ fraudulent concealment tolled the statute of limitations, and we affirm its ruling.

II

The Prasciunases challenge the district court’s ruling that set the value of the jewelry at $12,000. The controlling statute, Minn.Stat. § 604.14, subdivision 1 (2002), requires valuation of converted property at the time of conversion. The statute reads in relevant parts:

Subd. 1. Liability for theft of property. A person who steals personal property from another is civilly liable to the owner of the property for its value when stolen plus punitive damages of either $50 or up to 100 percent of its value when stolen, whichever is greater.
* * * *
Subd. 5. Recovery of property. The recovery of stolen property by a person does not affect liability under this section, other than liability for the value of the property.

■Id.

The Praciunases argue that the district court based its finding on an appraisal done in 2001 and that there is no evidence showing the value of the jewelry “when it was stolen in 1989,” to quote from their brief. Thus, they argue, there is a genuine issue of a material fact with respect to the value of the jewelry within the operation of the governing statute. We reject this argument.

When Williamson moved for summary judgment, she supported her motion with an appraisal showing the value of the jewelry in 2001 as $12,000. She also submitted a copy of the police report she filed with the Edina police in 1989, in which she gave a value of $12,000 to the jewelry. An owner may give an opinion on the value of personal property. Vreeman v. Davis, 348 N.W.2d 756, 757 (Minn.1984). Both the appraisal and the police report were attached to Williamson’s affidavit and were properly before the district court on the motion for summary judgment. The governing rule then provides:

When a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere averments or denials of the adverse party’s pleading but must present specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

Minn. R. Civ. P 56.05.

The Prasciunases offered no specific facts in opposition to Williamson’s showing that the value of the jewelry in 1989, and in 2001, was $12,000. The best we can tell, the Praciunases’ argument is that someone should have appraised the jewelry in 1989, “when stolen.” A mere argument, however, does not meet the requirements of Rule 56, and we conclude that the district court properly granted summary judgment in the amount of $12,000.

Ill

On Williamson’s notice of review, she challenges the district court’s denial of her motion seeking to amend the complaint for punitive damages. As a threshold matter, we note that allowing an amendment to seek punitive damages is within the discretion of the district court. LeDoux v. Northwest Pub., Inc., 521 N.W.2d 59, 69 (Minn.App.1994), review denied (Minn. Nov. 16, 1994). A plaintiff may not seek punitive damages in the original complaint, but rather, may do so only upon permission of the court. Minn.Stat. § 549.191 (2002). Specifically, a plaintiff must file a motion seeking punitive damages and must include the applicable legal basis and one or more affidavits setting forth the factual grounds supporting issuance of punitive damages. Id. Punitive damages are available to a plaintiff even where the only damage is to property and are not limited to cases of personal injury. Jensen v. Walsh, 623 N.W.2d 247, 249 (Minn.2001). “Punitive damages are intended to punish a defendant, or to make an example of a defendant’s wrongdoing,” not to reward an otherwise-compensated plaintiff. Ulrich v. City of Crosby, 848 F.Supp. 861, 867 (D.Minn.1994).

Here the district court found that Williamson was not entitled to amend her complaint to seek punitive damages because she had already been awarded $12,000 in punitive damages. The court explained

Influential to the court[’]s ruling is the fact that [the statute] concerning civil liability for theft already provides for “punitive” damages in the amount of 100% of the value of the stolen property. The court is satisfied that the likely deterrent effect of punitive damages is satisfied by the theft statute given the nature of the conduct in this case.

Although not mentioned explicitly by the court or either party, we find significant the fact that Williamson received her jewelry back from the Prasciunases. Williamson has not only had her property returned to her, but also has received a punitive damage award equal to the property’s value. We conclude that it was within the discretion of the district court to deny the motion to seek additional punitive damages.

DECISION

Because the Prasciunases fraudulently concealed Williamson’s cause of action with respect to her jewelry, the statute of limitations was tolled until March 2001, when Williamson learned that the Prasciunases did, in fact, possess her jewelry. In addition, the record amply supports the district court’s $12,000 valuation of the jewelry. Finally, the district court acted within its discretion when it denied Williamson permission to seek punitive damages.

Affirmed.

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

      . In Williamson's affidavit in support of her motion for summary judgment, Williamson describes the telephone call. Although Mr. Praciunas filed an affidavit in opposition, he did not deny the call, and we take Williamson’s statements as true.

      . The parties and the district court have treated the conversion and theft counts as a single cause of action. We will do the same and will refer to the two counts together as the claim for conversion.

      . This statute, the former Minn.Stat. § 332.51, was renumbered in 2002 but has remained textually unchanged since 1986.