author: CADY, Justice. SNELL, Justice TERNUS, Justice

text:
    STATE of Iowa, Appellee, v. Katherine ROHM, Appellant.
    No. 98-1550.
    Supreme Court of Iowa.
    April 26, 2000.

      Derek G. Jones of Wells & Wells, P.L.C., Davenport, for appellant.
    Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, William E. Davis, County Attorney, and Julie Walton, Assistant County Attorney, for appellee.
   CADY, Justice.

This is an appeal by a parent who was convicted of the crimes of involuntary manslaughter and supplying alcohol to a minor after a fourteen-year-old boy died from consuming a large quantity of alcoholic liquor during an evening gathering of teens and young adults in the basement of her home. She challenges the sufficiency of evidence to support the convictions and claims the restitution award violates the federal and state constitutions. We affirm the judgment and sentence of the district court.

I. Background Facts and Proceedings.

The tragic events of this case occurred at the home of Katherine Rohm during the week preceding Christmas 1997. They culminated in the death of Justin Flowers. Justin died from acute alcoholic intoxication. He was a learning disabled freshman in high school, who was on Christmas break.

Rohm lived in a two-story home in Davenport with her two sons, Kevin and Jeffrey Rohm. Rohm was left to raise the boys as a single parent a year earlier when her husband, the boys’ father, died. Kevin was twenty years old. Jeffrey was nineteen years of age. A friend, Freddie Duran, also lived in the home at the time. He was twenty-two years of age.

Kevin and Jeffrey decided to host a party on Sunday, December 21 in the basement of the home to celebrate Kevin’s upcoming birthday. The boys planned to serve beer and liquor, and charge the guests $5 to attend. This arrangement was done as a means to recoup their expenses for the party. The boys obtained two kegs of beer through a friend, and Jeffrey convinced Rohm to purchase liquor to serve at the party. Rohm initially resisted, but later agreed after Jeffrey persuaded her he would simply find another means to obtain liquor if she refused to purchase it. Jeffrey gave Rohm $80 to purchase a variety of liquor, including vodka, gin, and a grain alcohol called Ever-clear, which she did. Everclear is 190-proof grain alcohol. It contains ninety-five percent alcohol.

The basement of the Rohm home was not finished. It was accessible by steps which descended from a landing just inside a side door to the outside of the house. There was also a step or two which led from the landing to the kitchen on the first floor of the home. The basement was furnished with two sofas, some chairs, and a table, television, and refrigerator. It also had a bathroom, and a makeshift bedroom enclosed by sheets which hung from the ceiling. It was common for Kevin and Jeffrey to congregate with friends in the basement and drink beer. Rohm worked outside the home.

Word of the impending party spread among the network of friends during the week preceding the event, and people began to arrive at the house on Sunday afternoon. Most of the guests entered the side door, and nearly all of them were under twenty-one years of age. Most were in high school, between fifteen and seventeen years old. By evening, the party was in full swing. Rohm was at home during the time, and occasionally refused to permit guests to enter the house because of the large crowd that had assembled in the basement. She also occasionally complained to the crowd about the high level of noise. At one point during the evening, however, she left the home to purchase another bottle of Everclear after requested to do so by Jeffrey.

As the party progressed during the evening, many guests began to vomit and pass out. Jeffrey had prepared a punch which contained several types of liquors, including Everclear. After the party eventually came to an end, a number of the guests remained in the basement until morning in various states of repose.

The following day, friends again began to congregate in the basement of the Rohm home to watch football and play video games. Like the previous evening, Rohm was in the home. The liquor which remained from the party the night before remained in the basement, as well as the kegs of beer. Numerous bottles of liquor, including a bottle of Everclear, had been placed in the basement refrigerator. Rohm, at one point, removed a bottle of gin from the refrigerator after telling her sons and their friends who had gathered in the basement at the time that she did not want them to consume the liquor. She took the bottle of gin upstairs.

Justin Flowers arrived at the home on Monday evening around 7:30 p.m. with Freddie Duran. There were less than a dozen people in the basement at the time. Justin requested a drink and announced he wanted to become intoxicated. Jeffrey mixed orange juice, vodka, gin, and Ever-clear into a large plastic cup and handed it to Justin. Justin began to consume the drink. A short time later, Jeffrey told Justin he would pay him $10 if he could drink the remaining grain alcohol in the Everclear bottle. The bottle was approximately one-third full. Justin accepted the challenge and promptly chugged the contents of the bottle.

Within a short period of time, Justin’s walk and speech became impaired. He went upstairs for several minutes, before he returned to the basement and resumed drinking the concoction Jeffrey had prepared for him earlier. However, he was unaware that Jeffrey, and perhaps others in the basement, had added urine and additional liquor to the plastic cup while he was in the upstairs area of the house.

Shortly after drinking this new concoction, Justin began to vomit. He fell to the floor near one of the sofas and began to convulse before becoming motionless. While Justin remained in a comatose state, he became the target of a variety of crude acts. Jeffrey, and others, placed dog feces in his pants, stripped off his shirt, placed a cigarette in his ear, and put several household items and a sign on his body. Freddie also kicked him several times.

For the most part, the people in the basement believed that Justin had passed out, although some felt he did not look good. Nevertheless, the general social ac-tívities of the evening continued to take place around his motionless body as other guests would come and go. Only a modest amount of drinking took place, although guests participated in smoking marijuana before the evening came to an end. There were no large crowds in the basement like the night before, although Rohm complained of loud noise at one point.

Around 9:30 a.m. the next morning, Freddie attempted to awaken Justin. There was, however, no life in Justin to rouse. He had died sometime during the evening. His skin was cold and damp, and he had no pulse. Freddie and Jeffrey called 911, but not before removing the liquor bottles and kegs from the house, and engaging in a vain attempt to clean the basement.

The paramedics who responded to the 911 call found Justin on the basement floor when they arrived. He was lifeless and shirtless. A circular burn was observed on his back. Rigor mortis had set in to his joints. A pungent odor of feces, alcohol, vomit, and a cleaning agent permeated throughout the basement. A subsequent test revealed Justin’s blood contained an alcohol level of .412. An autopsy concluded he died from alcohol poisoning.

Rohm was charged with involuntary manslaughter and supplying alcohol to a minor resulting in death. Jeffrey, Kevin, and Freddie were also charged with crimes.

Following a trial, a jury found Rohm guilty of involuntary manslaughter in violation of Iowa Code section 707.5(1) (1997) and supplying alcohol to a minor in violation of section 123.47(6) (Supp.1997). The district court merged the two offenses and sentenced Rohm to an indeterminate sentence not to exceed five years. It also ordered a civil restitution award of $150,-000 pursuant to section 910.3B(1) (Supp. 1997).

Rohm appeals. She claims there was insufficient evidence to support her conviction. She also challenges the victim restitution award on constitutional grounds.

II. Scope of Review.

We review challenges to the sufficiency of the evidence for errors at law. Iowa R.App. P. 4; State v. Pace, 602 N.W.2d 764, 768 (Iowa 1999). We uphold a finding of guilt if “substantial evidence” supports the verdict. Pace, 602 N.W.2d at 768. “Substantial evidence” is evidence upon which a rational finder of fact could find a defendant guilty beyond a reasonable doubt. Id. We review the facts in the light most favorable to the State. Id. Furthermore, we consider not only evidence which supports the verdict, but all reasonable inferences which could be derived from the evidence. Id.

We review a challenge to jury instructions for errors at law. Iowa R.App. P. 4; Sheets v. Ritt, Ritt & Ritt, 581 N.W.2d 602, 604 (Iowa 1998). We review constitutional issues de novo. State v. Hamrick, 595 N.W.2d 492, 493 (Iowa 1999).

III. Involuntary Manslaughter.

Involuntary manslaughter is committed when a person “unintentionally causes the death of another” by recklessly committing either “a public offense, other than a forcible felony or escape,” or an act “likely to cause death or serious injury.” See Iowa Code § 707.5(1), (2) (1997). In this case, Rohm was charged under the commission of a public offense alternative of the crime. The underlying public offense was contributing to the delinquency of a minor under section 709A.1. Contributing to the delinquency of a minor means “knowingly encouraging], contributing] or in any manner causing a child under eighteen years] of age to violate any law of this state....” Id. § 709A.K3) (1997). The law in this state prohibits a person under the age of eighteen to possess alcoholic liquor, wine, or beer. Id. § 123.47(2), (3) (Supp.1997).

A. Sufficiency of Evidence.

The marshaling instructions to the jury in this case required the State to prove Rohm “knowingly and recklessly encouraged a child under eighteen years of age to commit a delinquent act, i.e., consumption of beer, wine, or liquor.” Rohm claims there was insufficient evidence to support a finding that she “knowingly encouraged” Justin to consume liquor.

The statute does not define the word “encourage.” Nevertheless, when a word has no legislative definition or some particular meaning in the law, we assume the legislature intended it to have its common and ordinary meaning. State v. White, 545 N.W.2d 552, 555-56 (Iowa 1996).

Encourage is commonly defined to mean “to inspire with courage, spirit, or hope; to spur on; to give help or patronage.” Merriam-Webster’s Collegiate Dictionary 381 (10th ed.1998). Furthermore, we use the word “encourage” to help define the theory of aiding and abetting. Aiding and abetting not only means to actively participate in a crime, but includes conduct which “encourages” the crime in some manner. State v. McClelland, 162 N.W.2d 457, 464 (Iowa 1968). Thus, we have held that encouragement does not require presence at the scene of the illegal activity. Id. Instead, all of the surrounding circumstances, including conduct before and after the offense, are considered. See id.; State v. Marsan, 221 N.W.2d 278, 280 (Iowa 1974).

Rohm acknowledges the evidence that she purchased the liquor for the party held on Sunday night, but claims the circumstances of the following day preclude a finding that she encouraged Justin to consume liquor on Monday night. She asserts encouragement cannot be found when she was absent from the basement throughout the time Justin consumed liquor, had no knowledge of the particular circumstances or manner in which Justin consumed the liquor, verbally disapproved of further consumption of liquor, and gave instructions on Monday night as guests began to gather in the basement that the remaining liquor could not be consumed.

We agree with Rohm that the party on Sunday was separated in time from the subsequent gathering in the basement on Monday night. We also agree that her role in the second party was diminished by the passage of time. However, there is one critical factor which inescapably ties Rohm to both events despite the passage of time.

A portion of the liquor she purchased for the party on Sunday and which she permitted to be freely consumed during the party remained in the basement on Monday as guests again arrived at the house. Rohm knew this liquor remained in the basement and knew young people were again gathering in the basement. There was also evidence that would have permitted the jury to conclude Rohm knew the consumption of liquor had resumed. Guests arrived at the house and left throughout the evening, and Rohm even complained of loud noise. Furthermore, Justin went upstairs for a period of time after he had consumed large quantities of alcohol and after he was exhibiting obvious signs of intoxication.

Although Rohm may have verbally disapproved of the further consumption of the liquor on Monday evening, the jury could have found she nevertheless encouraged the consumption of liquor on Monday by permitting the beer and liquor to remain in the basement under the control of her sons with knowledge that young people prone to engage in the consumption of liquor were again gathering in the basement.

Evidence of encouragement is not only derived from spoken words, but may be derived from actions and conduct which constitute encouragement. Moreover, by using all surrounding circumstances to determine whether encouragement exists, the actions of a person may give rise to substantial evidence of encouragement when words may not. The circumstances of this case reveal Rohm encouraged Justin to possess liquor in violation of the law through her actions in purchasing liquor and permitting the liquor to remain in the possession of her sons in an area of the house she knew would be occupied by un-deraged persons prone to consume the liquor. See United States v. Oloyede, 982 F.2d 133, 136-37 (4th Cir.1992) (selling fraudulent documents and immigration papers was “encouraging” aliens to reside in the United States in violation of the law). The conduct of Rohm was consistent with the consumption of liquor in the basement of the Rohm home by the Rohm boys and their friends. We conclude there was substantial evidence Rohm encouraged Justin to consume liquor.

B. Recklessness.

One essential element of involuntary manslaughter is that the underlying offense or act be committed in a reckless manner. State v. Conner, 292 N.W.2d 682, 686 (Iowa 1980); State v. Inger, 292 N.W.2d 119, 123 (Iowa 1980). This element existed at common law and has been preserved by our legislature in the subsequent statutory crime of involuntary manslaughter. Conner, 292 N.W.2d at 686.

Recklessness is conduct that shows a willful or wanton disregard for the safety of others. State v. Ayers, 478 N.W.2d 606, 608 (Iowa 1991). It is ordinarily conscious and intentional, and involves an unreasonable risk of harm to others which is or should be known to the offender. State v. Kernes, 262 N.W.2d 602, 605 (Iowa 1978).

Rohm claims that even if she may have encouraged Justin to possess or consume liquor, there was insufficient evidence to show her encouragement was reckless in light of her subsequent efforts to prevent the consumption of liquor.

. Although encouragement and recklessness were separate issues for the jury under the instructions, much of the evidence we considered to find substantial evidence of encouragement also supports a finding of recklessness. Additionally, Rohm not only purchased a large quantity of liquor containing high contents of alcohol, but also purchased 190-proof grain alcohol. Considering all of the circumstances, we find substantial evidence Rohm acted in a reckless manner.

IV. Supplying Alcohol to a Minor.

A person who is of legal age and is not a licensee or permitee commits a serious misdemeanor if the person “sells, gives or otherwise supplies alcoholic liquor, wine, or beer” to an underaged person. Iowa Code § 123.47(4) (Supp.1997). The crime is elevated to an aggravated misdemeanor if the violation results in serious injury to any person. Id. § 123.47(5). It is further elevated into a class “D” felony if the violation results in the death of any person. Id. § 123.47(6). Rohm claims there was insufficient evidence that she sold, gave, or otherwise supplied Justin with liquor. She asserts there was no evidence to show she affirmatively delivered the liquor to Justin.

The statutory crime of supplying alcohol to a minor requires a person to affirmatively deliver or transfer liquor, wine, or beer to the underaged person. See DeMore v. Dieters, 334 N.W.2d 734, 737 (Iowa 1983). This means that a violator must do more than merely permit or allow liquor, wine, or beer to be consumed on the violator’s premises. Id.; see also Fullmer v. Tague, 500 N.W.2d 432, 434 (Iowa 1993).

In Fullmer, we found a parent did not knowingly and affirmatively deliver beer to minors when she had no knowledge that her son used her check to purchase beer for a party, no knowledge of the party or any underaged drinking, and was not present at the party. Fullmer, 500 N.W.2d at 435. In contrast, there was substantial evidence in this case to show Rohm purchased the liquor and delivered it to her sons to be consumed by underaged persons at a party in the basement of her home. Rohm knew liquor remained in the basement the day following the party, and was present in the home when guests again gathered in the basement the following evening. There is also evidence to suggest Rohm knew the liquor was being consumed by underaged guests, including Justin. Under these circumstances, we find Rohm did more than merely permit liquor to be consumed. She knowingly and affirmatively delivered liquor to minors, including Justin.

Rohm also claims the trial court erred in failing to include recklessness as an element of the offense of supplying alcohol to a minor. Rohm argues recklessness must be included as an element of the felony offense of supplying alcohol to a minor because the offense is a particularized version of the crime of involuntary manslaughter.

Our legislature has wide latitude to declare an offense and define the appropriate element of criminal intent or culpable conduct. See State v. Wharff, 257 Iowa 871, 875, 134 N.W.2d 922, 925 (1965). To determine the type of culpability required by a statutory offense, we construe the statute by considering the language of the act, in connection with its manifest purpose and design. See Conner, 292 N.W.2d at 685. The statute in dispute provides:

A person who is of legal age, other than a licensee or permitee, who sells, gives, or otherwise supplies alcoholic liquor, wine, or beer to a person who is under the legal age in violation of this section which results in the death of any person commits a class “D” felony.

Iowa Code § 123.47(6) (Supp.1997).

There is no language in section 123.47(6) which discloses any legislative intent to impose recklessness as an element of the crime. The language of the statute does not contain the word recklessness or any similar indication of culpability, but is confined to the act of supplying alcoholic beverage to an under-aged person which results in the death of any person. Id. Nevertheless, we have on previous occasions construed statutes to include a criminal intent element which was absent from its face when supported by the manifest purpose and design of the statute. Conner, 292 N.W.2d at 685.

We acknowledge the crime of involuntary manslaughter and the felony crime of supplying alcohol to a minor are compatible when the underlying public offense of involuntary manslaughter is supplying alcohol to a minor. The trial court also understood this when it applied the merger doctrine for the two crimes. We also acknowledge recklessness is an element of the crime of involuntary manslaughter. See id. at 686. However, the identity of the two statutory crimes does not necessarily mean that recklessness must be an element of the felony offense of supplying alcohol to a minor.

We determined that our legislature intended to include the common law element of recklessness in the statutory crime of involuntary manslaughter as a means to exclude negligent conduct. Id. at 686-88. The purpose and design of the involuntary manslaughter statute was not to impose its harsh penalty for negligent conduct which results in death, but to punish a public offense committed in a reckless manner. Id. at 688. Although the language of our involuntary manslaughter statute applies to the commission of any public offense, except a forcible felony or escape, the recklessness element serves to exclude the commission of a public offense by those who were not conscious of the grave risks of their conduct. Id. at 687.

Unlike the crime of involuntary manslaughter, the language of the statutory crime of supplying alcohol to a minor which results in death does not apply to a broad range of general activity which requires an element to separate negligence from recklessness. The statute is designed to target the specific conduct of supplying alcohol to a minor. Thus, a recklessness element is not necessary to exclude other conduct not intended to be included.

Our concern, then, turns to whether the two statutes create two standards of conduct which are applicable to supplying alcohol to a minor resulting in the death of a person. See Kernes, 262 N.W.2d at 605 (absent a controlling statute, there should be one standard of conduct applicable to involuntary manslaughter cases).

We do not believe our legislature created two standards of conduct applicable to the activity of supplying alcohol to a minor which results in death. Although recklessness ordinarily involves a factual inquiry, some conduct itself may constitute recklessness. Id. at 605-06. This is because the very nature of some activities are considered reckless due to the known, dangerous risks involved. Id.; see also State v. Massick, 511 N.W.2d 384, 387 (Iowa 1994) (drunk driving is a reckless act in itself); State v. Wullner, 401 N.W.2d 214, 217 (Iowa App.1986) (it would be “patently absurd and generally redundant” for the State to have to show drunk driving was reckless). Thus, when the activity or conduct itself constitutes recklessness, the necessity of proof of recklessness is eliminated. The known and grave risks associated with the consumption of alcohol by minors would clearly justify our legislature in creating a statute which eliminates proof of recklessness for the crime of supplying alcohol to a minor which results in death.

There is another reason that discloses our legislature intended to eliminate proof of recklessness under section 123.47(6). The statute was enacted in 1997. See 1997 Iowa Acts ch. 126, § 2. Yet, at the time of its enactment, supplying alcohol to a minor was a public offense. Thus, the offense of supplying alcohol to a minor would have constituted an underlying public offense under the involuntary manslaughter statute. If the legislature intended recklessness to be an element of both statutes, section 123.47(6) would serve no useful purpose since the same conduct already fell within the involuntary manslaughter statute. We presume our legislature would not enact a statute which would serve no useful purpose. State v. Horton, 509 N.W.2d 452, 454 (Iowa 1993).

We conclude the district court properly instructed the jury on the elements of supplying alcohol to a minor which results in death under section 123.47(6). We believe our legislature intended to eliminate proof of recklessness as an element of the crime.

V. Restitution Award: Iowa Code section 910.3B.

In addition to the five-year indeterminate sentence and pecuniary damage restitution award, the district court entered an additional restitution award payable to Flowers’ estate in the amount of $150,000 pursuant to section 910.3B. See Iowa Code § 910.3B(1) (Supp.1997). Rohm argues the imposition of this additional restitution award violates her constitutional right against excessive fines. She also challenges the statute on due process grounds based upon her inability to challenge the amount of the award.

A. Excessive Fine.

Rohm argues the award pursuant to section 910.3B, on its face, violates the federal and Iowa constitutions’ guarantees against excessive fines. See U.S. Const, amend. VIII; Iowa Const, art. I, § 17. We have recently addressed this issue in State v. Izzolena, 609 N.W.2d 541, 547-48 (Iowa 2000). For the same reasons found in that decision we find the award under section 910.3B does not constitute an excessive fine.

Rohm also argues the statute, when applied to the facts of her case, violates her right to be free of excessive fines. She claims the award is grossly disproportionate to her conduct. We recently addressed this very issue in State v. Klawonn, 609 N.W.2d 515, 518 (Iowa 2000); however due to the fact-specific nature of the analysis, we will address it separately here.

Rohm contends the gravity of the offense was diminished because her conduct was passive and she lacked any intent to cause harm. She also asserts her limited financial means should be considered in determining whether the minimum amount of the restitution under the statute is excessive.

We have already addressed the seriousness of the conduct engaged in by Rohm. Although her conduct was passive in the sense that she did not participate in the consumption of liquor with the minors, she was the source or supplier of the liquor. She supplied large amounts of liquor, some with very high levels of alcohol. There was also evidence to support a finding she knew the liquor was being consumed. Whether passive or active, her conduct was extremely serious under the circumstances of the case.

We addressed the impact of the financial burden on the offender as it relates to the amount of the penalty in Klawonn. See Klawonn, 609 N.W.2d at 518. For the reasons expressed in our opinion in Kla-wonn, we conclude the financial burden visited upon Rohm would not make the restitution award grossly disproportionate to the offense.

B. Due Process.

Rohm argues section 910.3B violates the basic tenets of due process by failing to provide a procedure to challenge the imposition or the amount of the award. We recently decided in Izzolena that section 910.3B does not constitute a violation of procedural due process. See Izzolena, 609 N.W.2d at 546. For the same reasoning found in that decision we find section 910.3B does not violate Rohm’s due process rights.

VI. Conclusion.

We find substantial evidence in the record to support the district court’s entry of judgment against Rohm on the charges of involuntary manslaughter and providing alcohol to a minor. Additionally, we hold the award pursuant to section 910.3B does not constitute an excessive fine, nor violate due process guarantees. Accordingly, we affirm the district court’s judgment and sentence

AFFIRMED.

All justices concur except SNELL, J., who concurs in part and dissents in part, and TERNUS and LAVORATO, JJ., who dissent, and CARTER, J., who takes no part.

SNELL, Justice

(concurring in part and dissenting in part).

I concur in the majority’s opinion which affirms the convictions but dissent from the opinion regarding the $150,000 restitution order for the reasons stated by Justice Lavorato in State v. Izzolena, 609 N.W.2d 541 (Iowa 2000). I would vacate that order and remand so that the district court could then determine the amount of restitution in a meaningful hearing.

TERNUS, Justice

(dissenting).

I would reverse the defendant’s convictions because there was not substantial evidence that the defendant encouraged Justin Flowers to possess alcohol, or affirmatively delivered or transferred alcohol to him. There was no evidence in the record that defendant knew Flowers was consuming alcohol, or that she saw him in an intoxicated state when he went upstairs. I do not believe that the defendant’s passive conduct — allowing alcohol to remain accessible to minors — constitutes encouragement or an affirmative delivery so as to render the defendant criminally responsible for Flowers’ death.

LAVORATO, J., joins this dissent.

      . Grain alcohol is also known as ethanol. See McKnight v. State, 658 N.E.2d 559, 560 (Ind.1995). In Iowa, ethanol is regulated, not as an intoxicant, but rather as a fuel additive. See Iowa Code §§ 452A.2(2) (defining gasoline “blender"), .85(1) (tax on blended gasoline). Aside from its use as an intoxicant, grain alcohol has also been used in a multitude of criminal activities. See People v. Rogers, 222 Ill.App.3d 774, 165 Ill.Dec. 218, 584 N.E.2d 397, 398 (1991) (poured on skin and ignited, grain alcohol burned for over ten minutes and caused major burns to the skin); People v. Ortiz, 207 Ill.App.3d 1, 151 Ill.Dec. 957, 565 N.E.2d 228, 230 (1990) (grain alcohol used to clean bullets); People v. Rouser, 199 Ill.App.3d 1062, 145 Ill.Dec. 949, 557 N.E.2d 928, 930 (1990) (grain alcohol used for free-basing cocaine); State v. Withrow, 8 S.W.3d 75, 77 (Mo.1999) (grain alcohol used to manufacture methamphetamine). And while one court has found the risk of death associated with ingesting Everclear too common of knowledge to require a warning from the manufacturer, bottles of Everclear include a warning label. Compare Pemberton v. American Distilled Spirits Co., 664 S.W.2d 690, 693 (Tenn.1984) (no warning necessary), with Brune v. Brown Forman Corp., 758 S.W.2d 827, 830 (Tex.Ct.App.1988) (warning labels affixed).

      . The first prong of involuntary manslaughter is a class "D” felony. See Iowa Code § 707.5(1) (1997). The second prong is an aggravated misdemeanor. See id. § 707.5(2).

      . The law also prohibits any person under the age of twenty-one from purchasing or possessing liquor, wine or beer, except minors can possess alcohol in the privacy of their own home if their parent or guardian knowingly gives them alcohol, approves of its consumption, and is present at the time. See Iowa Code § 123.47(2) (Supp.1997). Additionally, persons under twenty-one may ingest alcohol for medicinal purposes under the orders of a doctor, or may handle alcohol in the course of their employment. See id.

      . It is a familiar truth that “actions speak louder than words.” The earliest written source of this ancient American proverb was in 1628. See A Dictionary of American Proverbs, 7 (Wolfgang Miedler eds., 1992) (citing Plym, Debate on Message From Charles I, 1628 as the first publication of the phrase).

      . Minors are ill-equipped to handle the effects of alcohol in their system, and merely providing it to them sets the stage for potentially fatal results. For example, in 1998, fourteen percent of drivers age 16-20 involved in fatal car accidents had a blood alcohol concentration of 0.10 percent or greater despite the minimum legal drinking age of twenty-one. See Nat'l Highway Safety Admin., U.S. Dep't of Transp., Traffic Safety Facts — Alcohol, tbl. 3 ("Alcohol Involvement for Drivers in Fatal Crashes, 1988 and 1998”) (1998). Additionally, over one-third (34%) of nonoccupant fatalities (pedestrians) from the same age group killed in accidents involving vehicles were legally intoxicated. See id. tbl. 5 ("Alcohol Involvement for Nonoccupants Killed in Fatal Crashes, 1988 and 1998”).

      . Although not raised by the parties to this action, in Klawonn, 609 N.W.2d at 517, we additionally determined section 910.3B does not constitute a violation of substantive due process.


source: Caselaw Access Project

author: CADY, Justice. SNELL, Justice

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Ryan KLAWONN, Appellant.
    No. 99-0631.
    Supreme Court of Iowa.
    April 26, 2000.

      Maggi Moss of Parrish, Kruidenier, Moss, Dun & Montgomery, L.L.P., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, John P. Sarcone, County Attorney, and Steven K. Young, Assistant Attorney General, for appellee.
   CADY, Justice.

Ryan Klawonn appeals the judgment and sentence imposed by the district court following his conviction for involuntary manslaughter in violation of Iowa Code section 707.5(1) (1997). He claims that portion of the sentence which requires him to pay $150,000 in victim restitution pursuant to section 910.3B (Supp.1997) violates his rights under the Excessive Fines, Double Jeopardy, and Due Process Clauses of the state and federal constitutions. He also argues the district court failed to exercise its discretion in imposing the restitution award. We affirm.

I. Background Facts and Proceedings.

The facts which give rise to this case occurred within a matter of seconds on November 22, 1997, around 11:00 in the evening. Ryan Klawonn was driving a Chrysler vehicle south on Fleur Drive in Des Moines. The speed limit in the area was forty miles per hour. At the same time, Nathaniel Boykin was driving his Ford vehicle north on Fleur Drive. Boy-kin turned his vehicle into the left-turn lane of Fleur Drive as he approached the intersection of McKinley Avenue, and started to turn left onto McKinley Avenue. At that moment, Klawonn’s vehicle approached the intersection at a speed in excess of seventy miles an hour.

Klawonn’s vehicle struck the right front portion of Boykin’s vehicle and violently pushed it into another vehicle. Boykin died within a short period of time as a result of the injuries sustained from the collision. He was seventy-one years old. Klawonn was twenty-four years old.

Just prior to the collision, Klawonn had stopped his vehicle at the intersection of Watrous Avenue and Fleur Drive, several blocks north of the crash scene. Klawonn was revving the engine of his Chrysler vehicle while waiting for the traffic control light to turn green. When the traffic light turned green, Klawonn quickly accelerated his vehicle and sped south on Fleur Drive. The road surface was dry that evening, and there were no drugs, alcohol, or other extenuating circumstances relating to the collision.

Klawonn was charged with homicide by vehicle in violation of section 707.6A(l)(a) (Supp.1997), but eventually pled guilty to involuntary manslaughter in violation of Iowa Code section 707.5(1) (1997). As a part of the sentence imposed by the district court, Klawonn was required to make restitution to the victim’s estate in the amount of $150,000 pursuant to section 910.3B(1) (Supp.1997).

Klawonn appeals from the imposition of-the restitution award under section 910.3B claiming it violates his rights under the Excessive Fines, Double Jeopardy, and Due Process Clauses of the United States and Iowa Constitutions. He also claims that the trial court failed to exercise its discretion in making the award. We affirm.

II. Scope of Review.

We review constitutional issues de novo. State v. Hamrick, 595 N.W.2d 492, 493 (Iowa 1999). Statutory challenges are reviewed for errors of law. Iowa R.App. P. 4; State v. Orozco, 573 N.W.2d 22, 24 (Iowa 1997).

III. Excessive Fines.

In State v. Izzolena, 609 N.W.2d 541 (Iowa 2000), we found the restitution award under section 910.3B does not violate the Excessive Fines Clauses of the Eighth Amendment of the United States Constitution, and article I, section 17 of the Iowa Constitution. Nevertheless, Kla-wonn claims the $150,000 restitution award imposed in this case is excessive in light of all of the underlying facts and circumstances of the offense.

The touchstone of the inquiry into the Excessive Fines Clause is based on the principle of proportionality. United States v. Bajakajian, 524 U.S. 321, 327, 118 S.Ct. 2028, 2033, 141 L.Ed.2d 314, 325 (1998). The “fine” must bear some relationship to the gravity of the offense it is designed to punish. Id. The sanction is excessive if it is grossly disproportionate to the gravity of the offense committed. Id. at 337, 118 S.Ct. at 2038,141 L.Ed.2d at 331.

In balancing the amount of restitution against the gravity of the offense, Klawonn argues the seriousness of the offense is diminished because his underlying activity was exceeding the speed limit. Thus, he claims the traffic offense of speeding does not justify punishment in the form of a restitution award of $150,000. Additionally, he asserts the award is excessive because it is not dischargeable in bankruptcy and will likely constitute a debilitating financial burden for the remainder of his 'life.

We acknowledge the predicate public offense committed by Klawonn was a simple misdemeanor traffic offense. See Iowa Code §§ 321.285, 321.482, and 805.8(2) (1997). Nevertheless, we have consistently required that the public offense which serves as the underlying crime of involuntary manslaughter must be committed with recklessness. See State v. Conner, 292 N.W.2d 682, 686 (Iowa 1980). Thus, the gravity of the underlying offense is not merely speeding, but speeding which demonstrates a willful and wanton disregard for the rights of others. See State v. Ayers, 478 N.W.2d 606, 608 (Iowa 1991). The operation of a motor vehicle on a city street at a rate of speed greater than even permitted on the interstate highways of this state is a grave offense in light of the likelihood of serious harm, including death. A vehicle operated in a reckless manner can be an extremely dangerous instrumentality of harm. See State v. Davis, 196 N.W.2d 885, 890 (Iowa 1972). We reject Klawonn’s argument that the gravity of his offense was diminished due to the underlying public offense he committed.

The inability to discharge the award in bankruptcy reveals a punitive aspect of the award. See State v. Mayberry, 415 N.W.2d 644, 646 (Iowa 1987); see also Kelly v. Robinson, 479 U.S. 36, 49 n. 10, 107 S.Ct. 353, 360-61 n. 10, 93 L.Ed.2d 216, 228 n. 10 (1986). We also acknowledge the award is enforceable as a civil judgment, which can create broad long-term obstacles for Klawonn. See Iowa Code § 910.7A (1997).

The financial inability of an offender to pay a fine does relate to the degree of punishment. 24 C.J.S. Criminal Law § 1604, at 203 (1989); see also State v. Trailer Serv., Inc., 61 Wis.2d 400, 212 N.W.2d 683, 689 (Wis.1973). The amount of a fine can adversely impact an offender with limited financial means more than an offender with greater financial means. Thus, it is properly considered under the proportionality test as it impacts the amount of the fine. See 24 C.J.S. Criminal Law § 1604, at 203. Even so, the impact is controlled by statutory restrictions and limitations placed on the enforcement and collection of the fíne. See, e.g., Iowa Code §§ 627.6, 642.21(1). The restitution statute permits the court to structure a plan of restitution to help diminish the collateral consequences of a civil judgment. See id. § 910.7; Izzolena, 609 N.W.2d at 552 n. 7. Furthermore, the collateral consequences feared by Klawonn merely result from those means provided by law to help all persons who hold a judgment to secure payment. See generally Iowa Code chs. 626, 641. Yet, those same laws also uniformly protect debtors from the multiple burdens associated with the enforcement of judgments. See In re Marriage of Eklofe, 586 N.W.2d 357, 359 (Iowa 1998). Thus, for the most part, the proportionality test under the Excessive Fines Clause looks beyond the individual financial consequences of paying a fíne.

Considering the gravity of the offense, neither the amount nor the consequences of a judgment make the award grossly excessive. We conclude the $150,000 restitution award is not grossly disproportionate to the gravity of the offense of involuntary manslaughter involving the reckless operation of a motor vehicle.

IY. Double Jeopardy.

We have determined a restitution award imposed by the court pursuant to section 910.3B does not violate the Double Jeopardy Clause of our state and federal constitutions. Izzolena, 609 N.W.2d at 543. Accordingly, we reject the contrary claim, made by Klawonn in this case.

V. Due Process.

Klawonn challenges the imposition of the restitution award under section 910.3B on procedural and substantive due process grounds. We rejected the same procedural challenge in Izzolena. See id. We therefore will only consider the claim by Klawonn that section 910.3B violates due process on substantive grounds. He claims the restitution award not only bears no reasonable relationship to a legitimate government interest, but that portion of the statute which precludes him from denying the elements of the offense in any subsequent civil action impermissibly undercuts his right to enter an Alford plea.

Under the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution, the state is forbidden from infringing on certain fundamental liberty interests, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest. Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1, 16 (1993). Article I, section 9 of the Iowa Constitution provides the same due process protections found in the Fourteenth Amendment to the United States Constitution. Iowa constitutional due process claims follow federal principles, and thus, we do not address the state due process claim separately. See State v. Miner, 331 N.W.2d 683, 688 (Iowa 1983).

Substantive due process analysis requires that we first identify the asserted right and determine whether it is “fundamental.” Id. We then determine whether the action infringing that right is narrowly tailored to serve a compelling state interest. In re C.S., 516 N.W.2d 851, 860 (Iowa 1994). Where the right infringed upon is not fundamental, substantive due process requires no more than “a ‘reasonable fit’ between governmental purpose ... and the means chosen to advance that purpose.” Id. at 861 (quoting Flores, 507 U.S. at 305, 113 S.Ct. at 1448-49, 123 L.Ed.2d at 18).

Klawonn does not allege that section 910.3B infringes upon a fundamental right, rather he argues it bears no rational relationship to any governmental interest. Our standard of review for his substantive due process challenge then is a rational basis test. See Kent v. Polk County Bd. of Supervisors, 391 N.W.2d 220, 225 (Iowa 1986).

We have explained the rational basis test under a substantive due process challenge as this:

There is no dispute about the rule that, to be constitutional, [a statute] must have a definite, rational relationship to a legitimate purpose....
A party who challenges [a statute] has the burden of proving it unconstitutional, and must negate every reasonable basis upon which the ordinance may be sustained. This means that the challenger has the burden of producing the evidence, and persuading the court, of the [statute’s] lack of rational nexus with its supposed purpose.
... If reasonableness of the [statute’s] nexus to its purported end is fairly debatable, it must be allowed to stand.

Exira Community Sch. Dist. v. State, 512 N.W.2d 787, 793 (Iowa 1994) (quoting Kent, 391 N.W.2d at 225).

We find an award under section 910.3B to have multiple purposes. It serves a remedial purpose in compensating the victim’s estate. It also serves a punitive purpose in punishing the defendant. In doing so, it also serves a rehabilitative purpose for the defendant. We have previously found restitution “is designed to instill responsibility in criminal offenders.” State v. Haines, 360 N.W.2d 791, 795 (Iowa 1985). Additionally, the Supreme Court has noted “[s]uch a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity....” Kelly v. Robinson, 479 U.S. 36, 49 n. 10, 107 S.Ct. 353, 360 n. 10, 93 L.Ed.2d 216, 228 n. 10 (1986).

The government interests in restitution awards under section 910.3B are both compensation to the family and punishment for the defendant. We find the award pursuant to section 910.3B is a “reasonable fit” between the above government interests and the means through which the legislature has chosen to accomplish them. See In re C.S., 516 N.W.2d at 861. Thus, we find the award does not constitute a violation of substantive due process on these grounds.

We also conclude section 910.3B(3) does not conflict with the Due Process Clause by effectively depriving an offender of the ability to enter an Alford plea. The Alford plea, as it has become known, was designed to permit a defendant to make a voluntary and intelligent decision to plead guilty to a crime without admitting participation in the underlying facts which constitute the crime. See North Carolina v. Alford, 400 U.S. 25, 37-38, 91 S.Ct. 160, 167-68, 27 L.Ed.2d 162, 171-72 (1970). This permits the defendant to avoid a full trial, placing the dispute as to the State’s overwhelming evidence and the defendant’s claimed innocence to be settled by a judge. Id. at 32, 91 S.Ct. at 165, 27 L.Ed.2d at 168. We first recognized the Alford plea in Young v. Brewer, 190 N.W.2d 434, 438 (Iowa 1971). However, the legal notions it adopted were first recognized by us over a century ago when we noted, “[r]easons other than the fact that [the defendant] is guilty may induce a defendant to so plead, ... [and][h]e must be permitted to judge for himself in this respect.” State v. Kaufman, 51 Iowa 578, 580, 2 N.W. 275, 276 (1879).

Alford dealt with a defendant who chose to plead guilty to a lesser second-degree murder charge and face the accompanying thirty-year imprisonment to avoid the death penalty associated with first-degree murder. Alford, 400 U.S. at 39, 91 S.Ct. at 168, 27 L.Ed.2d at 172. An Alford plea is intended to permit a criminal defendant to take advantage of a lesser charge to avoid the risk of trial without admitting liability for the underlying facts, for in those situations the defendant has “absolutely nothing to gain by a trial and much to gain by pleading.” Id. at 37, 91 S.Ct at 167, 27 L.Ed.2d at 171. Thus, the purpose of an Alford plea is not focused upon the potential impact such a plea would have in a subsequent civil suit, rather upon the defendant’s cost-benefit analysis of avoiding the risks associated with a trial on the more serious charge.

Additionally, a defendant has no fundamental constitutional right which requires the court to accept a guilty plea. Farley v. Glanton, 280 N.W.2d 411, 414 (Iowa 1979); see also Iowa R.Crim. P. 8(2)(b) (requirements for court to accept guilty plea). The court must determine a guilty plea has a factual basis before it can accept it, even where the plea is under Alford. See State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999); Farley, 280 N.W.2d at 416 (“because the accused is denying his guilt, a factual basis must be established independent of his statements”). Thus, even if the defendant wants to plead guilty, there is no guarantee the court will accept the plea.

Furthermore, we find sections 910.3B(2) and 910.3B(3) are designed to protect the defendant’s rights in the subsequent action and promote judicial efficiency respectively. Section 910.3B(2) precludes the admission of any evidence of the existence or amount of any award pursuant to section 910.3B(1) in any subsequent civil action based upon the same set of facts, and section 910.8 specifically offsets any subsequent civil award based on the same set of facts by any award pursuant to chapter 910. See Iowa Code § 910.8 (1997) (“any restitution payment by the offender to a victim shall be set off against any judgment in favor of the victim in a civil action arising out of the same facts or event”). Additionally, section 910.3B(3) comports with our prior pronouncements of issue preclusion. See Ideal Mut. Ins. Co. v. Winker, 319 N.W.2d 289, 297 (Iowa 1982) (a validly entered and accepted guilty plea precludes relitigation of essential elements of the offense in a civil case). While the defendant professes innocence, an Alford plea is only entertained after the “defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt.” Alford, 400 U.S. at 37, 91 S.Ct. at 167, 27 L.Ed.2d at 171. Thus, there is no material difference between a plea which includes an express admission of guilt and an Alford plea, where the defendant has determined, given the evidence by the State, it is in the best interest to accept the punishment associated with the lesser charge. Id. However, the motivation behind the plea is of no consequence, rather the acceptance of the guilty plea is what is important. See AID Ins. Co. (Mut.) v. Chrest, 336 N.W.2d 437, 440 (Iowa 1983).

We find Klawonn’s argument with respect to Alford pleas unpersuasive. Section 910.3B(3) does not result in a denial of due process.

VI. Mandatory Award Under Section 910.3B.

Klawonn argues the legislature’s use of the word “shall” in section 910.3B(1) should be interpreted to give the sentencing court some discretion in imposing this award. Sections 910.3B(1) states,

In all criminal cases in which the offender is convicted of a felony ... [which] caused the death of another person, in addition to the amount determined to be payable and ordered to be paid to a victim for pecuniary damages, ... the court shall also order the offender to pay at least one hundred fifty thousand dollars in restitution to the victim’s estate.

Iowa Code § 910.3B(1) (emphasis added).

The word “may” can be interpreted to mean “shall” where the context evidences such an intent. See State v. Berry, 247 N.W.2d 263, 265 (Iowa 1976). However, while the rule may work one way, it does not work the other. The word “may” can mean “shall,” but the word “shall” does not mean “may.” The legislature made this clear in drafting the Iowa Code when it said use of “ ‘shall’ imposes a duty;” while “ ‘may’ confers a power.” See Iowa Code § 4.1(80)(a), (c) (1997). Additionally, we have interpreted the term “shall” in a statute to create a mandatory duty, not discretion. See State v. Moyer, 382 N.W.2d 133, 134-35 (Iowa 1986); see also State v. Luckett, 387 N.W.2d 298, 301 (Iowa 1986) (use of “shall” creates mandatory action unless context clearly indicates otherwise). Finally, in Hansen v. Henderson, we said

“Sometimes courts are justified in interpreting the word ‘shall’ as ‘may,’ but, when used in a statute directing that a public body do certain acts, it is manifest that the word is to be construed as mandatory and not permissive. The uniform rule seems to be that the word ‘shall,’ when addressed to public officials, is mandatory and excludes the idea of discretion.”

Hansen v. Henderson, 244 Iowa 650, 665, 56 N.W.2d 59, 67 (1952) (quoting City of Newton v. Board of Supervisors, 135 Iowa 27, 30, 112 N.W. 167, 168 (1907) (citations omitted)).

We conclude the context of section 910.3B(1) clearly indicates the award is mandatory once the offender’s felonious actions result in the loss of human life. The use of the word “shall” in section 910.3B(1) was intended to create not merely the power to impose, but rather the duty upon the sentencing court to impose a restitution award payable to the estate of at least $150,000.

VII. Conclusion.

We hold the award pursuant to section 910.3B does not constitute an excessive fine, nor violate notions of double jeopardy. Finally, the award does not violate procedural or substantive due process rights.

AFFIRMED.

All justices concur except SNELL, J., who concurs in part and dissents in part and is joined by TERNUS, J., and CARTER and LAVORATO, JJ., take no part.

SNELL, Justice

(concurring in part and dissenting in part).

I concur in the majority’s opinion excepting for division III on excessive fines. I dissent from that division for the reasons stated in Justice Lavorato’s dissent in State v. Izzolena, 609 N.W.2d 541 (Iowa 2000), where I joined his dissent. I would vacate that order and remand so that the district court could then determine the amount of restitution in a meaningful hearing.

TERNUS, J., joins this concurrence and dissent.

      . We do not consider whether the bankruptcy court would be required to follow that portion of section 910.3B which declares the restitution award "shall not be dischargeable ... under the federal Bankruptcy Act.” Ultimately, federal law, not state law, governs the determination of the dischargeability of debt. See In re Gross, 175 B.R. 277, 284 (Bankr.N.D.Ind.1994); In re Tapp, 16 B.R. 315, 318 (Bankr.D.Alaska 1981); see also 11 U.S.C. § 523(c) (1993).

      . The Fourteenth Amendment states no State "shall deprive any person of life, liberty or property without due process of law.” U.S. Const, amend. XIV, § 1.


author: CARTER, Justice.

text:
    MONROE COUNTY, Iowa, Appellant, v. INTERNATIONAL INSURANCE COMPANY and Mount Airy Insurance Company, Appellees.
    No. 98-1145.
    Supreme Court of Iowa.
    April 26, 2000.

      Bernard L. Spaeth, Jr. and August B. Landis of Whitfield & Eddy, P.L.C., Des Moines, for appellant.
    Robert G. Allbee and Edward W. Rems-burg of Ahlers, Cooney, Dorweiler, Hay-nie, Smith & Allbee, P.C., Des Moines, and Jeffrey A. Goldwater and Carol L. Johnson of Bollinger, Ruberry & Garvey, Chicago, Illinois, for appellees.
   CARTER, Justice.

Monroe County, which suffered a substantial tort judgment against it in prior litigation, appeals from a grant of summary judgment in favor of International Insurance Company (International) and Mount Airy Insurance Company (Mount Airy) on the county’s claim that those insurers were bound to indemnify it against the claim on which the tort judgment was based. In denying coverage, International and Mount Airy relied on several exclusions in their respective “claims made” policies, some of which the district court found to be applicable. Because we conclude, as did the district court, that a prior litigation exclusion contained in both policies applies to defeat the coverage claimed by Monroe County, we affirm the judgment of the district court on that theory and do not consider the other defenses that have been advanced by the insurers.

A substantial tort judgment was entered against Monroe County in prior litigation brought by Iowa Coal Mining Company, Star Coal Mining Company, and Jim Hu-yser. We affirmed much of that judgment in Iowa Coal Mining Co. v. Monroe County, 555 N.W.2d 418 (Iowa 1996) (Iowa Coal II). That litigation had been preceded by an earlier action that was before this court in Iowa Coal Mining Co. v. Monroe County, 494 N.W.2d 664 (Iowa 1993) (Iowa Coal I). The damage claim in Iowa Coal II was premised on the legal theory that the county had unlawfully and tortiously interfered with a contract that the plaintiffs had made for the landfilling of utility and industrial ash.

In seeking summary judgment on the claims for indemnification brought against them in this action, International and Mount Airy rely on an exclusionary clause contained in the liability policy the county purchased from these companies described as a prior litigation exclusion. It was the theory of the insurers that there was a sufficient relationship between the claims in Iowa Coal II and the claims in Iowa Coal I to trigger this exclusion under their “claims máde” policies. In granting summary judgment, the district court concluded that “there is little question that there is a nexus between the two lawsuits” and ruled that the exclusions precluded coverage. We must determine whether that ruling was correct based on the exclusionary language of the insurance policies and the circumstances of the prior litigation.

The liability insurance policies issued to Monroe County by International and Mount Airy are very similar. Both are public employees and officials liability insurance policies written on a “claims made” basis. The International policy covered claims first made during the period January 1, 1993, to January 1, 1994. The Mount Airy policy covered claims first made during the period January 1, 1994, to January 1, 1995. Both policies contained the following exclusion:

It is understood and agreed that the insurer shall not be responsible for making any payment for loss in connection with any claim made against any insured based upon, arising out of, in consequence of, or in any way involving:
(1) Amy prior and/or pending litigation as of 01/01/92 including but not limited to matters before local, state, or federal boards, commissions, or administrative agencies, or
(2) Any fact, circumstance, or situation underlying or alleged in such litigation or matter.

The Iowa Coal I litigation was filed on May 5, 1988, decided in the district court on June 19,1991, and decided on appeal on January 20, 1993. It thus was clearly pending on the exclusions’ operative date of January 1, 1992. In contrast, the Iowa Coal II litigation was not commenced until May 7, 1993, well after the operative date of the prior litigation exclusions.

Monroe County urges that the claim for which it seeks indemnification was first made when the Iowa Coal II petition was filed on May 7, 1993, while International’s policy was in force. In the alternative, it urges that the claim was first made on March 18, 1994, during Mount Airy’s policy period when the legal theory of tortious interference with a contract was first injected into the litigation. Although the two insurance companies disagree as to when the claim leading to the county’s liability in Iowa Coal II was first made, they urge that it does not matter because the recovery is based on facts underlying or alleged in Iowa Coal I thus precluding coverage under paragraph (2) of the prior litigation exclusion. We agree.

I. Interpretation of the Exclusions.

In discussing the role of a prior litigation exclusion in “claims made” liability insurance policies, one court has stated:

“Claims made” insurance policies, as opposed to occurrence-based policies, are intended by insurers to avoid the “hazard of an indefinite future: Once the policy period has expired, the book can be closed on everything except then-pending claims.” On the other hand, an insurer incurs a risk with this kind of policy: liability for “a claim that has been brewing and was ripe to erupt before the policy period, but is asserted only after the policy period begins.” For this reason, claims made policies generally include a number of endorsements and exclusions intended to limit this front-end risk by cutting off liability for claims ready, but not yet made, at the start of the policy period.

Ameriwood Indus. Int’l Corp. v. American Cas. Co., 840 F.Supp. 1143, 1148-49 (W.D.Mich.1993) (citations omitted).

Construction of an insurance policy — the process of determining its legal effect — is a question of law for the court unless it depends on extrinsic evidence or a choice among more than one reasonable inference. A.Y. McDonald Indus., Inc. v. Insurance Co. of N. Am., 475 N.W.2d 607, 618 (Iowa 1991); Farm Bureau Mut. Ins. Co. v. Sandbulte, 302 N.W.2d 104, 107-08 (Iowa 1981). In the construction of insurance policies, the cardinal principle is that the intention of the parties must prevail. If the language of the policy is unambiguous, as the parties concede it is in the present case, that intent is determined by what the policy itself says. A.Y. McDonald, 475 N.W.2d at 618. When words in a policy are left undefined, we give them the meaning that a reasonable person would understand them to mean. Farm & City Ins. Co. v. Potter, 330 N.W.2d 263, 265 (Iowa 1983). In applying these principles, we believe that phrases like “in any way involving” and “any fact, circumstance, or situation underlying or alleged” must be applied in the same comprehensive manner as they are written. We discern nothing in the language of the exclusions relied on by the district court that requires that a claim, in order to be excluded, must involve the same legal theory, wrongful acts, or requests for relief. On the contrary, these exclusions are phrased in the disjunctive. A claim is excluded if it is based upon or in any way involves any fact, circumstance, or situation underlying or alleged in litigation pending on January 1,1992, or pursued prior thereto.

The foundation for the tort recovery in Iowa Coal II was a contract that the plaintiffs in that action had with a company known as Metro Waste to transport the latter’s incinerated sewage sludge ash to a landfill site controlled by those plaintiffs. Evidence was presented that, if the county had not sought to block this arrangement by improper means, the transaction would have produced an $850,000 profit to the entities controlling the landfill site. The jury’s verdict for the plaintiffs in Iowa Coal II was exactly $850,000.

In an amendment to the petition against Monroe County in Iowa Coal I, filed on October 25, 1988, it was alleged in paragraph (14) of Count I:

By reason of the actions taken by Monroe County, Plaintiffs have sustained damages in the following respects and particulars, to-wit:
A. Plaintiffs incurred significant out-of-pocket expenses in preparing for a particular use of their land which is no longer authorized under the Monroe County Zoning Ordinance.
B. Plaintiffs will be unable to proceed with the planned use of their property in Monroe County, and will sustain future loss of profits and business value.

It was further alleged in paragraph (3) of Count II:

By reason of the actions taken by Monroe County, Plaintiffs have sustained damages in the following respects and particulars, to-wit:
A. Plaintiffs incurred significant out-of-pocket expenses in preparing for a particular use of their land which is no longer authorized under the Monroe County Zoning Ordinance.
B. Plaintiffs will be unable to proceed with the planned use of their property in Monroe County, and will sustain future loss of profits and business value.

Based on these allegations, the plaintiffs sought money damages from the county in both counts of the amended petition. During the litigation, evidence was presented that showed that the planned use of the plaintiffs’ property included the contract with Metro Waste on which the tortious interference claim in Iowa Coal II was based. Moreover, part of the future loss of profits and business value sought to be recovered in Iowa Coal I were tied to the loss of the Metro Waste contract. Although the damages claimed in Iowa Coal I were based on a different legal theory than the claim on which plaintiffs prevailed in Iowa Coal II, it seems inescapable that the latter involved facts, circumstances, and situations underlying or alleged in the former. We expressly acknowledged this in our Iowa Coal II opinion in which we stated:

[Although] [n]one of these issues [the tortious interference claim] were litigated in Iowa Coal I... there was evidence before the district court in the first action from which the court could find the County interfered with this prospective contractual relationship.

Iowa Coal II, 555 N.W.2d at 443.

II. Reasonable Expectations.

As a backup argument, Monroe County asserts that irrespective of the interpretation placed on the prior litigation exclusion it was entitled to expect liability coverage for the Iowa Coal II judgment under the doctrine of reasonable expectations. The doctrine of reasonable expectations is more than a rule of interpretation. It seeks to avoid the frustration of an insured’s expectations notwithstanding policy language that appears to negate coverage. It is a narrow doctrine that is primarily employed when the insurance coverage provided eviscerates terms explicitly agreed to or is manifestly inconsistent with the purpose of the transaction for which the insurance was purchased. Sandbulte, 302 N.W.2d at 112; C & J Fertilizer, Inc. v. Allied Mut Ins. Co., 227 N.W.2d 169, 176 (Iowa 1975). We have recognized, however, that the doctrine will not be applied to cases in which an ordinary layman would not misunderstand the extent of the coverage provided from a reading of the policy and there are no circumstances attributable to the insurer that would foster coverage expectations beyond that which is provided. Rodman v. State Farm Mut. Auto. Ins. Co., 208 N.W.2d 903, 906 (Iowa 1973). We conclude that this was the situation with respect to Monroe County’s expectations in the present case. The county has not made a ease for avoiding the plainly written exclusion contained in the International and Mount Airy policies.

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

AFFIRMED.

All justices concur except LAVORATO and TERNUS, JJ., who take no part.


text:
    STATE of Iowa, Appellee, v. Larry Joe ARTZER, Appellant.
    No. 99-393.
    Supreme Court of Iowa.
    April 26, 2000.

      Alfredo Parrish of Parrish, Kruidenier, Moss, Dunn & Montgomery, L.L.P., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik and Scott Brown, Assistant Attorneys General, and Ronald E. Robertson, County Attorney, for appellee.
   CADY, Justice.

This is an appeal from a judgment and sentence for second-degree murder in violation of Iowa Code section 707.3 (1997). We affirm.

I. Background Facts and Proceedings.

Larry Artzer and William Kolacia were long-time close friends. They had known each other since grade school. On February 23, 1998, the two men were in a Fort Dodge tavern drinking with other friends. Artzer’s wife, Barbara, came into the tavern late in the afternoon. She expressed her dislike to Artzer over the amount of time he was spending with his friends and handed him her wedding ring.

Shortly after the confrontation, Artzer left the bar. Barbara told Kolacia she was concerned her husband was going to damage her car. Kolacia offered to check on her car, and left the bar. He never returned. He was found lying dead in the parking lot of the tavern approximately ten minutes later. He had been shot with a bullet from a small caliber gun.

Not long after the shooting Artzer called the police to turn himself in. He later related portions of the incident to police. He told police he recalled telling Kolacia to get away from him, and remembered Kola-cia lying on the ground. He also disclosed to police the location of the handgun used to shoot Kolacia. Additionally, Artzer called his father and told him he had shot Kolacia.

A subsequent investigation by police discovered several witnesses to the shooting. Although none of the witnesses were actually able to see the shooting, several heard the gunshot followed by the statement, “I told you I was going to shoot you.” One witness described the voice as “mean.”

Artzer was charged and tried for first-degree murder. He claimed the defense of diminished responsibility and intoxication. The jury found him guilty of second-degree murder, but the district court granted Artzer a new trial based on error during the jury deliberations. The motion for new trial was granted on October 29, 1998.

A new trial was scheduled for January 11, 1999. The State subsequently amended the trial information to charge Artzer with murder in the second degree.

On December 10, 1998, substitute counsel entered an appearance for Artzer. On the same date, Artzer filed a motion for continuance of the trial. He alleged his new counsel had planned a vacation during the scheduled trial, and was also unable to begin preparing his defense because he had not yet received his file from previous trial counsel.

The district court held a hearing on the motion for continuance on December 18, 1998. Artzer’s new counsel received the file from prior counsel sometime before the hearing. The district court denied the motion. It found no “good and compelling cause” to extend time for trial.

A trial was held on January 19, 1999. Counsel for Artzer did not raise the defenses of diminished responsibility and intoxication, although Artzer had a lengthy psychiatric history, and a record of alcohol and drug abuse.

The jury found Artzer guilty of murder in the second degree on January 22, 1999. The district court set sentencing for February 19,1999.

On February 11, 1999, Artzer filed a motion for new trial. The motion challenged the sufficiency of the evidence. Artzer, however, again terminated his relationship with his trial attorney and obtained different counsel.

On February 16, 1999, new counsel entered an appearance for Artzer and filed a motion for continuance of sentencing. Artzer also sought a transcript of the trial to enable his new attorney to prepare additional post-trial motions. Artzer believed his trial counsel was ineffective and he wanted time to gather evidence and amend the pending motion for a new trial to allege grounds of ineffective assistance of counsel.

The district court denied the application for a continuance of sentencing. It found Artzer did not establish good cause for a continuance. The district court determined the delay in sentencing would be too time consuming and disruptive to an orderly trial process, and concluded that any Claim of ineffective assistance of counsel could be raised on appeal or postconviction relief.

Artzer was sentenced to a term of incarceration not to exceed fifty years. He was also ordered to pay statutory restitution to the victim’s estate in the sum of $150,000. Artzer appeals.

II. Scope of Review.

Our scope of review varies with the nature of the claims raised. We review claims of insufficient evidence for errors at law. Iowa RApp. P. 4. We review the denial by the district court of a motion for continuance for an abuse of discretion. See Countryman v. McMains, 381 N.W.2d 638, 640 (Iowa 1986). We review claims involving violations of our constitution de novo. State v. Pace, 602 N.W.2d 764, 768 (Iowa 1999). We review challenges to statutes for errors at law. State v. Orozco, 573 N.W.2d 22, 24 (Iowa 1997).

III. Sufficiency of Evidence.

Artzer claims there was insufficient evidence to establish he acted with malice aforethought. The claim is based largely on his long-time close relationship with Kolacia and the lack of any apparent dispute or disagreement between the two men prior to the shooting.

Malice aforethought is an essential element of murder in the second degree. See Iowa Code §§ 707.1, .3 (1997). It is “a fixed purpose or designed to do some physical harm to another which exists prior to the act committed.” State v. Sharpe, 304 N.W.2d 220, 226 (Iowa 1981). The intent to inflict harm, however, need not exist for any period of time prior to the act. State v. Love, 302 N.W.2d 115, 119 (Iowa 1981). Moreover, it can be inferred from the use of a weapon. State v. Whiteside, 272 N.W.2d 468, 472 (Iowa 1978); State v. Woodmansee, 212 Iowa 596, 620, 233 N.W. 725, 733 (1930).

We find substantial evidence to support the conviction for murder in the second degree. The record reveals substantial evidence Artzer shot Kolacia with a handgun. Additionally, witnesses overheard a confrontation between the two men just prior to the shooting. This confrontation, along with the evidence that Kolacia was shot with a handgun, supports a finding of malice aforethought. We find a rational trier of fact could conclude Artzer committed murder in the second degree.

IV. Denial of Motions For Continuance.

Artzer alleges the trial court committed error in denying his motions to continue the trial and the sentencing. Artzer sought to continue the trial after terminating his relationship with his original trial counsel to give his new trial attorney additional time to prepare for trial, and to accommodate his attorney’s scheduled vacation. Artzer also wanted to obtain an expert witness, and sought additional time to reconsider his defense of diminished responsibility and intoxication.

Artzer moved to continue the sentencing after he terminated his relationship with his second trial attorney. He asked for additional time before sentencing to permit his new attorney to file a post-trial motion for new trial. Artzer wanted to raise the claim of ineffective assistance of trial counsel as an additional ground for a new trial.

A. Continuance of Trial.

A motion for continuance for trial may be granted only “upon a showing of good and compelling cause.” Iowa R.Crim. P. 8.1(2). Otherwise, the date assigned for trial is considered fixed. Id. The decision to grant or deny a motion for continuance rests in the sound discretion of the trial judge. State v. Leutfaimany, 585 N.W.2d 200, 209 (Iowa 1998). It will not be disturbed on appeal unless an injustice has resulted. Id. The standard recognizes the interest of both the state and the defendant in a speedy and fair trial. Id.

In this case, substitute counsel entered his appearance more than one month prior to trial. Furthermore, the request for a continuance was filed at the same time as the appearance. Substitute counsel could not have known at the time whether additional time was actually needed without having reviewed the file and the trial preparation conducted by prior counsel. Considering the time remaining before trial and the availability of the trial preparation by the attorney who represented Artzer in the first trial, the motion was premature.

We also consider that substitute counsel never filed an additional motion for continuance after he started to pursue his own trial preparation. Substitute counsel did claim additional time was needed to obtain an expert witness on the issues of diminished capacity and intoxication, but later decided not to pursue these defenses. There is no indication the decision to abandon the defenses of diminished capacity and intoxication was based on the lack of time for preparation.

We also reject any notion that the trial should have been continued to accommodate the vacation schedule of substitute counsel. Substitute counsel had the option of declining the request to represent Art-zer to avoid the conflict. The interests of the State and a defendant in a speedy and fair trial do not embrace the self-inflicted personal interests of counsel. Considering all of the circumstances as revealed by the record, we find the trial court acted well within its discretion to deny the motion for continuance of trial.

B. Continuance of Sentencing.

In considering the motion for continuance of the sentencing, we agree with the sound reasoning of the district court that the symmetry afforded the trial process precludes unnecessary delay in sentencing. A trial judge is required to set a date for the pronouncement of judgment and imposition of sentence within a reasonable time after a verdict of guilty. See generally Iowa R.Crim. P. 22(1). Any post-trial motions must be heard within thirty days after they are filed, absent good cause. Iowa R.Crim. P. 23(2)(e), (3)(f). The process does not contemplate unnecessary delay between the verdict of guilty and the entry of judgment and sentence.

In this case, Artzer did not explain the reason new counsel was needed for sentencing, other than to pursue the claim of ineffective assistance of trial counsel. He also failed to allege any specific error which the transcript would confirm. There was no good cause alleged to support a delay in sentencing, and Artzer failed to point to any resulting prejudice. Under the circumstances, it was unnecessary to prolong the sentencing process for the purpose of injecting claims of ineffective assistance of counsel which could be raised on appeal or in a postconviction relief action. The trial court did not abuse its discretion in denying the motion for continuance.

V. Ineffective Assistance of Counsel.

Artzer claims he was denied effective assistance of counsel in two ways. He asserts trial counsel was ineffective by failing to offer expert testimony regarding his prior mental problems. He also claims trial counsel was ineffective for failing to raise the defenses of intoxication and diminished capacity.

A defendant is entitled to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984). The test is “whether under the entire record and totality of the circumstances counsel’s performance was within the normal range of competence.” Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981). A defendant is not entitled to perfect representation, rather representation which is within the normal range of competency. Karasek v. State, 310 N.W.2d 190, 192 (Iowa 1981). Ordinarily, ineffective assistance of counsel claims are reserved for postconviction relief actions. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999). However, when the appellate record is sufficient to permit a ruling, we will address the claims on direct appeal. Id.

In order for Artzer to prevail, the record must demonstrate (1) counsel failed to perform an essential duty, and (2) prejudice resulted. Jones v. Scurr, 316 N.W.2d 905, 911 (Iowa 1982). Prejudice is found where there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.

The defenses of intoxication and diminished capacity are not available to a defendant charged with second-degree murder. See State v. Caldwell, 385 N.W.2d 553, 557 (Iowa 1986); State v. Gramenz, 256 Iowa 134, 142-43, 126 N.W.2d 285, 290-91 (Iowa 1964). This is because voluntary intoxication and diminished capacity are only defenses to the specific intent element of a crime. Caldwell, 385 N.W.2d at 557; Veverka v. Cash, 318 N.W.2d 447, 449 (Iowa 1982). Second-degree murder has no specific intent element. See Caldwell, 385 N.W.2d at 557; Iowa Code § 707.3 (1997).

Accordingly, trial counsel could not be ineffective for failing to pursue defenses which have no legal basis under the pending charges. See State v. Plowman, 386 N.W.2d 546, 551 (Iowa App.1986). We find Artzer failed to establish trial counsel neglected to perform an essential duty.

YI. Iowa Code section 910.3B (Supp. 1997).

Artzer claims the restitution award of $150,000 imposed as a part of the sentence violated the Excessive Fine and Double Jeopardy Clauses of the state and federal constitutions. He also claims the trial court erred by not exercising its discretion in determining whether to impose the restitution award.

We recently addressed the issue of the constitutionality of the restitution award under section 910.3B (Supp.1997) in State v. Izzolena, 609 N.W.2d 541, 545 (Iowa 2000). Based upon the same reasoning, we find the $150,000 restitution award in this case does not constitute an excessive fine, nor violate notions of double jeopardy.

We also recently addressed the issue of the mandatory nature of the award pursuant to section 910.3B (Supp.1997) in State v. Klawonn, 609 N.W.2d 515, 517 (Iowa 2000). Based upon the same reasoning, we determine the trial court was required under the section to impose the minimum restitution award. Therefore, we affirm the $150,000 restitution award payable to Kolacia’s estate.

VII. Cumulative Effect.

Artzer alleges the cumulative error by the trial court in denying his motion to continue the trial, denying his motion to continue the sentencing, and denying his motion for judgment of acquittal based upon insufficient evidence resulted in the denial of his right to a fair trial. Having found each of the underlying claims to have no merit individually, we reject the claim of cumulative error.

VIII. Conclusion.

We affirm Artzer’s conviction for murder in the second degree and the accompanying sentence which includes an indefinite term of imprisonment not to exceed fifty years and the $150,000 restitution award payable to Kolacia’s estate.

AFFIRMED.

All justices concur except SNELL, J., who concurs in part and dissents in part, and LAVORATO and TERNUS, JJ., who take no part.

SNELL, Justice

(concurring in part and dissenting in part).

I concur excepting for division VI to which I dissent for the reasons expressed by Justice Lavorato’s dissent in State v. Izzolena, 609 N.W.2d 541 (Iowa 2000), in which I joined. I would vacate the restitution order and remand so that the district court could then determine the amount of restitution in a meaningful hearing.

      . While the record does not reveal the reason, the trial court did enter an order on December 29, 1998, rescheduling the trial from January 11, 1999 to January 19, 1999. The motion for continuance indicated substitute counsel had a week-long vacation scheduled beginning January 11, 1999.


author: LARSON, Justice.

text:
    CITY OF HIAWATHA, Iowa, Appellant, v. CITY DEVELOPMENT BOARD, Appellee, City of Robins, Iowa, Intervenor-Appellee.
    No. 98-1470.
    Supreme Court of Iowa.
    April 26, 2000.

      James P. Craig, Randal J. Scholer, and Brenda K. Wallrichs of Moyer & Bergman, P.L.C., Cedar Rapids, for appellant.
    Thomas J. Miller, Attorney General, and Christie J. Scase, Assistant Attorney General, for appellee.
    Donald C. Hoskins, Marion, and Roger Nowadzky, Des Moines, for intervenor-ap-pellee.
   LARSON, Justice.

This is one of two annexation cases filed today concerning the annexation of Linn County land. The first case, City of Hiawatha v. City Development Board, 609 N.W.2d 496 (Iowa 2000) (Hiawatha I), involved annexation by the City of Cedar Rapids. The present case involves annexations by the cities of Robins and Hiawatha. The district court affirmed rulings by the City Development Board dividing the area in contention between Robins and Hiawatha. Hiawatha sought judicial review, claiming it should have received more of the territory. Robins claims in its cross-appeal (without separately seeking judicial review) that Hiawatha should not have obtained what it did. The district court affirmed, and both cities appealed. We affirm on both appeals.

I. Facts and Prior Proceedings.

In 1996 property owners located near Robins submitted applications requesting voluntary annexation to Robins pursuant to Iowa Code chapter 368 (1995). Of the approximately 707 acres involved, owners of all but 91.29 acres (12.9%) voluntarily petitioned for annexation. Iowa Code section 368.7(1) allows up to twenty percent of the proposed area to be involuntary so as to avoid the creation of islands and irregular boundaries. In this case, as in Hiawatha I, the petitioning landowners do not appear to have a particular yearning to become part of a city; they petitioned for annexation to Hiawatha and Robins because they believed they were about to be annexed by someone. They wanted a say in their destiny.

On December 17, 1996, Robins’ city council voted to annex the land and requested approval by the City Development Board on December 23. On December 27, 1996, the City of Hiawatha filed a petition for involuntary annexation that included land common to Robins’ voluntary annexation.

On January 9, 1997, Hiawatha filed another proposal with the board, a voluntary application involving two parcels, both of which were also contained in Robins’ voluntary application. The board amended Robins’ application by deleting parcels Nos. 28 and 31, and approving Hiawatha’s annexation of those parcels. (This is the basis for Robins’ cross-appeal.) The board then divided the remaining territory into two parts, assigning each a different case number. The result of the board’s action was to approve annexation of all of the contested area to Robins, except parcels 28 and 31, which it concluded should be annexed to Hiawatha.

The board entered its findings of fact and conclusions of law on August 11, 1997. On September 9, 1997, Hiawatha filed a petition for judicial review of the board’s decision. Robins did not seek judicial review of the portion of the board’s ruling as to which it now complains; however, on October 13, 1997, Robins intervened in Hiawatha’s judicial review proceedings. The matter was submitted to the district court on June 2, 1998. After the case was submitted, Hiawatha discovered that portions of the hearing before the board had been omitted from the transcript. On July 1, 1998, Hiawatha requested the district court to withhold ruling until the omission was cured. On July 2 the board verified that portions of Hiawatha’s presentation to the board had indeed been omitted from the transcript. The omitted evidence included comments by Hiawatha’s attorney as well as the testimony of its mayor, finance director, city engineer, and water superintendent. The board informed the district court it was preparing minutes of the meeting and would provide them to the court to supplement the agency record.

However, without.ruling on Hiawatha’s request and without addressing the matter of the omissions, the district court affirmed the board’s decision in its ruling filed July 14, 1998. Hiawatha appealed and Robins cross-appealed.

II. The Issues.

Although the parties to the appeal and cross-appeal raise five issues, we believe they may be condensed to four. First, whether substantial evidence supported the board’s findings that the requirements of Iowa Code section 368.7(4) for voluntary annexations were met. Second, whether the board correctly applied the statutory preference for voluntary proceedings. Third, whether the district court erred in ruling on judicial review without receiving the omitted portions of the record. Fourth, on Robins’ cross-appeal, whether the board erred in deleting parcels 28 and 31 from its petition and annexing them to Hiawatha.

III. The Substantial Evidence Issue.

Because Hiawatha filed an involuntary annexation petition within thirty days of Robins’ voluntary annexation application, the provisions of Iowa Code section 368.7(4) are triggered. Section 368.7(4), in relevant part, provides:

If one or more applications for a voluntary annexation and one or more petitions for an involuntary annexation ... for a common territory are submitted to the board within thirty days of the date the first application or petition was submitted to the board, the board shall approve the application for a voluntary annexation, if the application meets the applicable requirements of this chapter, unless the board determines by a preponderance of the evidence that the application was filed in bad faith, or that the application as filed is contrary to the best interests of the citizens of the urbanized area, or that the applicant cannot within a reasonable period of time meet its obligation to provide services to the territory to be annexed sufficient to meet the needs of the territory.

According to the statute, the board must approve Robins’ voluntary application unless a preponderance of the evidence showed Robins could not provide sufficient services to the territory within a reasonable time. The inquiry is different from that in an involuntary petition, in which the petitioner must show it is capable of providing “substantial municipal services and benefits not previously enjoyed by such territory.” See Iowa Code § 368.17(4); City of Des Moines v. City Dev. Bd., 473 N.W.2d 197, 201 (Iowa 1991) (involuntary annexation requirements not imposed in voluntary proceedings).

In its findings of fact, the board found:

The City of Robins can within a reasonable period of time meet its obligation to provide services to the territory to be annexed sufficient to meet the needs of the territory. The Board determined that the City of Robins can provide the services that were identified by the owners of land in the territory at the public hearing.

The area in question consists primarily of agricultural land, with twenty-eight families and a scattering of residential acreages. Although the residents are served by private wells and septic systems, there was evidence in the record as to Robins’ general plans for the provision of municipal water and sewer service to the territory. Moreover, the residents of the new area, a large percentage of whom had petitioned for annexation to Robins, apparently did not believe they had needs in excess of what would be available to them. Robins indicated that it intends to provide water and sewer service to the territory as development occurs, perhaps with financial assistance from developers. Robins showed it is willing and able to immediately begin providing police and fire service. It has a city park, and although it does not have its own library, it has made arrangements with the Marion and Cedar Rapids libraries.

We believe the record is sufficient to support the board’s finding. See City of Des Moines, 473 N.W.2d at 199 (evidence is substantial if a reasonable person would find it adequate to reach a decision). Here, a reasonable person could conclude Robins was capable of providing services to the territory to be annexed sufficient to meet the needs of the territory.

Under Iowa Code section 368.7(4), another ground on which a voluntary petition for annexation may be denied is if it is shown the annexation is “contrary to the best interests of the citizens of the urbanized area.” Hiawatha argues “the board erred in finding the annexation to Robins was in the best interest of the urbanized area and its decision was arbitrary and unreasonable in light of the record presented.”

This argument is based largely on a comparison of the relative public services and accessibility between Robins and Hiawatha. That, however, is not the issue; under the statute, the issue is whether it was established that the annexation by Robins was contrary to the best interests of the “urbanized area.”

Hiawatha’s “best interests” argument is based in large part on its premise that Hiawatha is part of the “urbanized area” whose best interests are to be considered. Hiawatha says it has engaged in “substantial planning and infrastructure which it undertook and paid for with an eye toward providing services to the annexation area.” Unless it annexes this area, Hiawatha will, so to speak, be all fixed up with no place to go. This, it argues, is certainly not in its best interests.

The problem with this argument is that Hiawatha is not a part of the “urbanized area” whose best interests are the touchstone. We resolved that issue against Hiawatha in Hiawatha I. See 609 N.W.2d at 500-01 (“urbanized area” under Iowa Code section 368.7(4) does not include a city).

Iowa Code section 368.6 expresses the intent of the legislature in this language:

It is the intent of the general assembly to provide an annexation approval procedure which gives due consideration to the wishes of the residents of territory to be annexed, and to the interests of the residents of all territories affected by an annexation. The general assembly presumes that a voluntary annexation of territory more closely reflects the wishes of the residents of territory to be annexed, and, therefore, intends that the annexation approval procedure include a presumption of validity for a voluntary annexation approval.

(Emphasis added.)

Nearly every resident of the proposed annexation territory who appeared at the board hearing supported annexation by Robins. These people said Robins had been responsive to their questions without “suggesting what [their] conclusions ought to be.” They also felt Robins has historically been, and appears committed to being, the type of community in which they prefer to reside.

We conclude substantial evidence supported the board’s conclusion that Robins’ annexation was not contrary to the best interests of the urbanized area.

IV. The Presumption of Validity.

Hiawatha contends that the board erroneously interpreted and applied the presumption of validity of section 368.6 and the preference for voluntary annexation provided by section 368.7(4). Hiawatha argues the board “overstated, overemphasized, and erroneously relied on the preference accorded to voluntary annexation requests under chapter 368 of the Iowa Code” and erroneously applied the presumption of validity under Iowa Code section 368.6. We addressed these arguments, under very similar facts, and resolved them against Hiawatha in Hiawatha I, 609 N.W.2d at 501. That case controls here.

V. The Omitted Record Issue.

Hiawatha discovered, after the case had been submitted to the district court, that a portion of the record before the board had been omitted from the record forwarded to the district court. Hiawatha asked the court to delay ruling until the omission was cured, but the court did not wait; it decided the case without ruling on Hiawatha’s application for additional time. Hiawatha claims this was error.

This situation is analogous to a motion to reopen a record in district court after submission of the evidence, a matter as to which a court must be given considerable discretion. In any event, the court’s ruling without the omitted record would not require reversal, as Robins contends. The missing portion of the record included introductory comments by Hiawatha’s attorney, comments by the board chairman, and the testimony of several officers and employees of Hiawatha concerning its ability to provide necessary services to the annexed area. We do not know what bearing the chairman’s comments would have on this appeal, but it does not appear they could reasonably have any significant impact on the board’s decision. Further, for the reasons previously discussed, the ability of Hiawatha to provide necessary services, as to which the municipal officers and employees testified, is not a viable issue; it is the ability of Robins to furnish necessary services to the area that is critical under section 368.7(4). Even if the district court erred in ruling on the judicial review petition without reopening the record, any error was harmless.

VI.The Cross-Appeal Issue.

Robins contends the board erred by deleting parcels 28 and 31 from its application and assigning that area to Hiawatha. The problem with this argument is that Robins did not petition for judicial review. The board’s decision allowing Hiawatha to annex the two parcels in question was apparently issued on April 9, 1997, and affirmed after reconsideration by the board. Hiawatha’s annexation of the two parcels became complete upon expiration of the time for review of the board’s decision and the filing of copies of the board’s proceedings with the Secretary of State, city clerk, and county recorder. See Iowa Code § 368.20(2). Robins did not file a petition seeking judicial review, although a timely petition to the district court is a jurisdictional prerequisite for judicial review of final agency action. Sharp v. Iowa Dep’t of Job Serv., 492 N.W.2d 668, 669 (Iowa 1992).

Although Robins contends it may challenge the ruling of the board in connection with the two parcels of land by simply intervening in Hiawatha’s judicial review proceeding, we see nothing in chapters 17A or 368 that would permit an aggrieved party to challenge the ruling in that manner. We therefore agree with the district court that it lacked jurisdiction to resolve the issue.

We find no basis for reversal and therefore affirm on both appeals.

AFFIRMED ON BOTH APPEALS.

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