author: SABERS, Justice.

text:
    2000 SD 123
    Chong C. SHYKES, Claimant and Appellant, v. RAPID CITY HILTON INN, Employer and Appellee, and Traveler’s Insurance Co., Insurer and Appellee, and Custom Packaging Systems, Inc., Employer and Appellee, and Traveler’s Insurance Co., Insurer and Appellee.
    Nos. 21108, 21109.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 14, 2000.
    Decided Sept. 6, 2000.

      Mark S. Falk, Falk Law Office, Rapid City, Attorney for claimant and appellant.
    Michael M. Hickey of Bangs, MeCullen, Butler, Foye and Simmons, Rapid City, Attorneys for appellees’ Rapid City Hilton and Traveler’s Insurance.
    Patricia A. Meyers of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, Attorneys for appellees Custom Packaging and Traveler’s Insurance.
   SABERS, Justice.

[¶ 1.] Chong Shykes brought a workers’ compensation claim against Custom Packaging Systems, Inc. (Custom). The Department of Labor (DOL) determined that Chong provided timely notice to Custom and awarded her benefits. The circuit court reversed DOL and concluded that Chong was barred from recovering any benefits because she did not provide adequate notice to Custom. We affirm.

FACTS

[¶ 2.] Chong was born March 5, 1947 in Seoul, South Korea. She attended grade school in Korea and completed the United States equivalent of the third grade. In 1991, she came to the United States with her American husband, Greg Shykes. She speaks very limited English and cannot read or write in English. Therefore, Greg assists Chong with her daily English correspondence and communications. For example, he goes with her to her doctor appointments to complete paperwork and converse with the physician, he meets with her employers and he reads and explains the contents of her mail to her.

[¶ 3.] In January 1993, Chong obtained a job at the Rapid City Hilton Inn (Hilton) as a maid. During this employment, Chong experienced a significant amount of discomfort in her arms, primarily the right arm. She thought this was from hard work and expected it to get better as she got accustomed to the work. Greg feared that the pain was related to Chong’s prior surgery. Therefore, during Chong’s routine doctor visit in June, he discussed the problem with Dr. Overmiller. Dr. Over-miller suggested that Chong use anti-inflammatory medication coupled with certain soaks to the chest wall to alleviate the pain and to determine whether the pain was due to muscle soreness or due to a residual effect of the surgery.

[¶ 4.] Chong quit her job with Hilton on June 30, 1993. In a letter written by Chong’s supervisor, Chong reported that “she couldn’t work anymore because her arm was hurting her.”

[¶ 5.] After her employment ended, Chong’s hands and arms began to feel better. She sought a less strenuous job and applied with Custom to work in its sewing department. Greg filled out the application for Chong. Custom directed Chong to report to Dr. Waltman for a pre-employment physical. Greg completed the doctor’s questionnaire for Chong. None of the tests administered by Dr. Waltman caused pain to Chong and he ultimately determined that Chong was “suitable for any employment” at Custom.

[¶ 6.] Chong was hired to work for Custom on August 2, 1993 as a seamstress. After a couple of weeks, her arms began to hurt. A co-worker told her that new employees always experienced some pain and that it would go away. Greg still feared that the pain was related to the cancer surgery. So, instead of waiting to see if it would improve, she reported to a physician practicing at Ellsworth Air Force Base, Dr. Wicks, on August 20, 1993 complaining of pain in her hands, wrists, elbows and shoulders for about two months. Dr. Wicks did not diagnose Chong, but prescribed a medication for her. He saw her again on September 3, 1993 and noted that the medication did not help alleviate the pain. He then noted: “[tjhis is a chronic problem for this patient who probably does not yet understand that she must change [her] lifestyle and/or work habits and must follow through with instructions.” Dr. Wicks referred Chong to Dr. Walker, an orthopedic specialist whose office is also located at Ellsworth Air Force Base.

[¶ 7.] On September 30,1993, Chong saw Dr. Simmons, a neurologist. He reported that the cause of her problems was somewhat uncertain, and encouraged her to follow through with her appointment with Dr. Walker.

[¶ 8.] On October 20, 1993, Dr. Walker assessed Chong’s problem as: “(1) lateral epicondylitis, right worse than left; (2) probable overuse tendonitis; and (3) probable dependent edema secondary to bilateral mastectomy and radical lymph node dissection of the axila.” Dr. Walker felt Chong needed to slow down and placed a cast on her right arm to force her to do so. He also restricted her work activities: “No lifting, pulling, pushing with right arm. Avoid rapid, repetitive activities with left hand. Continue these [restrictions] for 2 weeks.” With these restrictions, Dr. Walker indicated Chong could “safely return to work but with light duty.”

[¶ 9.] When Chong reported to work at Custom with a cast on her arm, the personnel director, Bobbi Lundgren, had a difficult time communicating with her. Therefore, Lundgren contacted Dr. Walker to determine Chong’s restrictions. Meanwhile, the plant manager, Gloria Mi-kula, decided to take Chong off work for three weeks while Chong’s arm was in a cast. On October 20, 1993, Mikula filled out Chong’s leave of absence form: “I request a leave of absence for the following date: 10-20 - 11-9-93 - Tennis elbow.”

[¶ 10.] Because Chong did not want to take any time off, she and Greg met with Mikula. Mikula stated that they did not have any light work available for Chong, so Chong would have to take time off. Greg signed the leave of absence form for Chong.

[¶ 11.] Chong saw Dr. Walker on November 5, 1993 and he noted that there was “still quite a bit of tenderness around the lateral epicondyle of her right elbow despite the casting.” Chong then began physical therapy.

[¶ 12.] On December 9, 1993, Chong saw Dr. Goff, a physical medicine and rehabilitation specialist, who assessed cumulative trauma disorder “with the right lateral epicondylitis being the most apparent diagnosis.” It was at this appointment that Chong and Greg first learned that Chong’s injury was probably work-related and not related to the cancer surgery. He noted that Chong “needfs] to alter [her] work activity if she is going to control these symptoms.” Dr. Goff reported: “[i]f her history is accurate, then this would be a work related injury related to the initial repetitive activities at her maid job.” As a result of Dr. Goffs recommendation, Greg notified Hilton that Chong had a work-related injury. On Chong’s behalf, he also completed an Employer’s First Report of Injury, dated December 23,1993.

[¶ 13.] In a letter to Dr. Walker dated December 9, 1993, Dr. Goff indicated that Chong was “reluctant to modify [her] job activity” because of her family’s financial situation.

[¶ 14.] Chong received an injection in her right elbow from Dr. Goff on December 30, 1993. During a follow-up appointment on February 2,1994, Dr. Goff reported:

There appear[s] to be two separate issues here. One is an epicondylitis [that] she apparently developed in the course of her first employment at the Hilton. She then went to work for [C]ustom [P]ackaging and developed symptoms on the left. Right symptoms have continued almost unchanged. Thus, it would appear that the initial work activity at the Hilton, according to the history, was responsible for her right upper extremity pain. The contribution of the second job to the right upper extremity symptoms is uncertain. It is possible that her work activity there presents just enough aggravation to keep it from resolving, though was not the etiology for that pain. It does, however, appear to be the etiology for her left wrist area pain.

[¶ 15.] Travelers, the workers’ compensation insurance carrier for both Hilton and Custom, was investigating the claim Chong filed against Hilton on December 23,1993. Travelers sent a letter to Chong, dated March 1,1994:

We represent Travelers, the workers’ compensation carrier for Rapid City Hilton Inn.
We have completed a review of your above captioned file. It appears from medical records that your subsequent employment with the sewing company aggravated your medical condition to the point where medical treatment was required.
As such, we must deny payment of compensation and/or medical benefits. It is our suggestion a claim be submitted through your current employer for their consideration.

Greg admitted that he read this letter, but did not file a claim with Custom because, based on what the doctors were reporting, he did not feel Custom caused Chong’s injury.

[¶ 16.] On April 7, 1994, Chong signed a “Request for Medical Records” form. On this form, she authorized the hospital at Ellsworth Air Force Base (Dr. Wicks and Dr. Walker) to release her medical records associated with this injury to Custom. Lungren completed the request for Chong and also signed the form as a witness.

[¶ 17.] Chong continued to sew for Custom until May 1994. At that time, there was not enough sewing work available, so Custom required Chong to fold canvas bags. This new work involved heavier lifting and hurt Chong’s arms so much that she immediately reported extreme pain to her supervisor. Chong was allowed to go home that day, May 9, 1994. On May 12, 1994, Chong was discharged “[u]ntil full Dr. release from Dr. due to [workers’ compensation] problems with previous employer.” Her leave of absence form stated: “While working at Hilton[,] Chong [acquired] tennis elbow, [and it] is still giving her problems.” Greg and Chong discussed the situation with Lungren on May 13 and tried to persuade her to let Chong continue sewing. Lungren testified that this was the first time that Chong and Greg told her that Chong’s doctor advised her to stop working at Custom.

[¶ 18.] Chong returned to Dr. Goff on June 6, 1994. He confirmed that her medical condition had stabilized during February, March and April 1994, until she was switched over to the bag folding position in May. Dr. Goff indicated that the diagnosis “remains cumulative trauma disorder of the upper extremities.” However, he noted that the disorder “appears to be under control just as long as she has a steady[ ] job that she is familiar with as the sewing.”

[¶ 19.] On June 30, 1994, Chong and Greg saw an attorney to pursue Chong’s workers’ compensation claim against Hilton. The attorney informed them that Chong might have a compensable injury related to her work at Custom. By letter dated July 1, 1994, Chong’s attorney informed Custom that Chong suffered from a cumulative trauma injury. He requested Custom to begin paying workers’ compensation benefits to Chong pursuant to SDCL 62-7-38. Travelers, acting as Custom’s insurer, denied the claim.

[¶ 20.] DOL determined that Chong provided timely notice to Custom and awarded workers’ compensation benefits to her. The circuit court, however, determined that Chong had thirty days after March 1, 1994 to notify Custom of her work-related injury. Because Chong waited until July 1, 1994 to notify Custom, she was barred from receiving benefits. .Chong appeals raising five issues, which we reduce to three:

1.Whether the circuit court erred in determining that Chong failed to provide timely notification of her work-related injury to Custom.
2. Whether DOL erred as a matter of law by denying Chong’s motion for costs.
3. Whether DOL erred as a matter of law in failing to award prejudgment interest and cost of living increases to Chong.

Custom filed a notice of review raising four issues:

1. Whether DOL erred in determining that Chong did not misrepresent her physical condition to Custom.
2. Whether the circuit court erred in determining that Chong proved her disability was aggravated by her employment with Custom.
3. Whether DOL erred in determining that Chong has reached maximum medical improvement.
4. Whether DOL erred in determining that Chong was entitled to odd lot benefits.

STANDARD OF REVIEW

[¶ 21.] We review administrative decisions the same as the circuit court. Vaughn v. John Morrell & Co., 2000 SD 31, ¶ 11, 606 N.W.2d 919, 922. We will not disturb DOL’s factual findings unless they are clearly erroneous. Welch v. Automotive Co., 528 N.W.2d 406, 409 (S.D.1995) (citation omitted). Conclusions of law are reviewed de novo. Id. (citations omitted).

[¶ 22.] WHETHER THE CIRCUIT COURT ERRED IN DETERMINING THAT CHONG FAILED TO PROVIDE TIMELY NOTIFICATION OF HER WORK-RELATED INJURY TO CUSTOM.

[¶ 23.] The Workers’ Compensation Act was enacted by the South Dakota Legislature in 1917. The purpose is to provide employees, who are injured within the scope of their employment, with reimbursement for medical care and wage benefits without having to prove the employer was at fault or negligent. Schipke v. Grad, 1997 SD 38, ¶ 11, 562 N.W.2d 109, 112. In turn, employers are “granted total immunity from suit for its own negligence in exchange for payment of workers’ compensation insurance.” Id. (citations omitted). However, an injured employee must also comply with the statutory notice requirements in order to recover.

[¶ 24.] “The purpose of the written notice requirement is to give the employer the opportunity to investigate the injury while the facts are accessible. The notice requirement protects the employer by assuring he is alerted to the possibility of a claim so that a prompt investigation can be performed.” Westergren v. Baptist Hospital of Winner, 1996 SD 69, ¶ 18, 549 N.W.2d 390, 395. Therefore, “[njotice to the employer of an injury is a condition precedent to compensation.” Id. ¶ 17.

[¶ 25.] “The law in effect when the injury occurred governs the rights of the parties.” Id. ¶ 18 (citing Helms v. Lynn’s, Inc., 1996 SD 8, ¶ 11, 542 N.W.2d 764, 766). Prior to July 1,1994, SDCL 62-7-10 provided that an employee, who sustained a work-related injury, had thirty days from the date of her injury to notify her employer of that injury. However, the failure to provide written notification to the employer may be excused if the employer had actual knowledge of the injury or if the employee has a “reasonable excuse” for failing to comply. SDCL 62-7-10 (1993).

A. Was written notification provided to Custom within the statutory time limitation?

[¶ 26.] Chong argues that she was not aware that she had a compensable claim against Custom until she consulted an attorney on June 30, 1994. Therefore, she claims that her written notification on July 1, 1994 was within the time requirements of SDCL 62-7-10.

[¶ 27.] Custom argues it received insufficient notice that Chong’s injury was related to the work Chong performed at Custom. In fact, Custom claims it did not receive written notice that Chong’s injury was related to Custom’s employment until July 1, 1994. Due to insufficient notice, Custom claims it was prejudiced because it was unable to investigate Chong’s injury while the facts were readily accessible and it was denied the opportunity to minimize the seriousness of any work-related injury.

[¶ 28.] DOL determined that Chong complied with SDCL 62-7-10 by providing written notification to Custom on July 1, 1994:

Claimant provided written notice of her injury to Custom Packaging on July 1, 1994, as soon as Claimant was informed by her legal counsel Custom Packaging might have some responsibility for providing workers compensation coverage for her cumulative trauma injury. Prior to being so informed by legal counsel, Claimant was under the impression that the Hilton was fully responsible for providing workers compensation coverage for the cumulative trauma injury. Claimant’s written notice to Custom Packaging was timely.

The circuit court found that DOL was clearly erroneous in making the above finding. Instead, it determined that the thirty-day notification period was triggered by Traveler’s letter dated March 1, 1994:

This communication ... unequivocally put [Chong] and her husband on actual notice of an injury at Custom Packaging, that the injury was work related, and of [Chong’s] obligation to file a notice with Custom Packaging. She had thirty days from this letter in which to give such notice under SDCL 62-7-10.

The circuit court concluded that Chong did not notify Custom within thirty days after March 1, 1994. Therefore, she was barred from recovering against Custom.

[¶ 29.] In determining the exact date from which the thirty-day notice requirement is triggered, we have stated that “[t]he time period for notice or claim does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness and probable compen-sable character of the [the] injury or disease.” Miller v. Lake Area Hospital, 1996 SD 89, ¶ 14, 551 N.W.2d 817, 820. Whether the claimant’s conduct is reasonable is determined “in the light of [her] own education and intelligence, not in the light of the standard of some hypothetical reasonable person of the kind familiar to tort law.” Loewen v. Hyman Freightways, Inc., 1997 SD 2, ¶ 15, 557 N.W.2d 764, 768.

[¶ 30.] Chong has limited use and comprehension of the English language. Therefore, her husband, Greg, assists her with daily communications including: reading and explaining the contents of her mail to her, accompanying her to medical appointments and completing the documentation, and talking with her employers and signing and completing employment documents. Chong testified that Greg handled every document related to her employment and this injury. She admitted that Greg read and explained the documents to her.

[¶ 31.] Given the testimony and intimate nature of this spousal relationship, it is clear that Chong authorized and relied on Greg to act on her behalf. It is also clear that Greg held himself out as Chong’s agent with no objection from Chong. Therefore, an agency relationship existed between Chong and Greg. See White Motor Corp. v. Northland Ins. Co., 315 F.Supp. 689, 692 (D.S.D.1970) (holding a husband was bound by his wife’s signature in light of her routine of signing his name to documents). When an agency relationship exists, “both principal and agent are deemed to have notice of whatever either has notice of and ought, in good faith and the exercise of ordinary care and diligence, to communicate to the other.” SDCL 59-6-5. It is fair that she gets the detriments as well as the benefits associated with this relationship. Thus, the law presumes that Greg, the agent, relayed to Chong, the principal, all information that he acquired regarding her injury, and, additionally, “[t]he fact the knowledge was not actually communicated to the principal will not prevent operation of the general rule.” Aetna Life Ins. Co. v. McElvain, 363 N.W.2d 186, 189 (S.D.1985) (citation omitted).

[¶ 32.] While it remains unclear whether Chong read the March 1, 1994 letter or whether Greg read it to her, it is clear that Greg read it. Under the principles of agency, Greg’s knowledge of the contents of the letter is imputed to Chong. Thus, a reasonable person with Chong’s education and intelligence would “recognize the nature, seriousness, and probable compensable character of [her] injury” upon receipt of this March 1 letter. Because Custom was not provided with written notification within thirty days of March 1,1994, Chong failed to comply with SDCL 62-7-10. Therefore, Chong must prove that Custom had actual notice of her claim or that she had a “reasonable excuse” for failing to provide the requisite notice.

B. Did Custom have actual knoiuledge that Chong had a possible compen-sable claim against it?

[¶ 33.] Chong argues that Custom knew just as much as she did about her medical condition. She relies on the fact that Custom called her physicians and therapist and acquired some of the medical documents relating to this injury. While Custom knew that Chong had a claim against Hilton, Chong asserts that Custom buried its head to “any possibility that Chong may have a compensable claim involving Custom.”

[¶ 34.] Custom does not deny that it called some of her physicians to inquire about her condition and to attempt to obtain any work restrictions. Custom asserts that the medical providers told them that it was acceptable for Chong to continue working as a seamstress. Therefore, Custom argues that these communications, as well as its communications with Chong and Greg, revealed that Chong’s injuries were related solely to the prior employment at Hilton and not to her employment at Custom.

[¶ 35.] The circuit court first determined that Chong failed to preserve the issue that Custom had actual knowledge because it failed to file a notice of review from DOL’s ruling. Despite that, the circuit court concluded that Chong “failed to meet her burden of proof to show that Custom [] had actual notice of any work-related injury....”

[¶ 36.] In determining actual knowledge, the employee must prove that the employer had “sufficient knowledge to indicate the possibility of a compensable injury.” Streyle, 345 N.W.2d at 866. The employee must also prove that the employer had sufficient knowledge that the injury was sustained as a result of her employment versus a pre-existing injury from a prior employment.

[¶ 37.] In reviewing prior cases where we determined that an employer possessed actual notice of the employee’s work-related injury, one dominant theme exists: the employer was alerted to the possibility that the employee’s injury was related to the current employment. See Westergren, 1996 SD 69, ¶ 20, 549 N.W.2d at 396 (determining that the employer, who began investigating the injury because it thought it was related to a compensable back injury the employee already sustained at this employment, had actual notice); Schuck v. John Morrell & Co., 529 N.W.2d 894, 898 (S.D.1995) (concluding that the employer had actual notice based on the fact that it paid for the employee’s medical expenses); Streyle, 345 N.W.2d at 867 (holding that actual notice was proven when the employee told the plant manager that something must have happened to her back because it hurt).

[¶ 38.] In this case, Greg testified that “[f]rom the first time [Chong] saw Dr. Goff, [Dr. Goff] asked her to quit, or modify, her work and ... was willing to go along with her to continue sewing, as long as it [did not] further aggravate the condition.” He also testified that at the February 2, 1994 appointment, Dr. Goff told Greg that any job involving repetitive hand activity would cause Chong difficulty. Greg acknowledged that even though he knew sewing to be a repetitive hand activity, he did not relay this information to Custom. He further testified that he discussed modifying Chong’s work environment with her supervisors on a couple of occasions. However, he admitted that he never told them that Chong’s arms were hurting because of her work at Custom.

[¶ 39.] Lungren testified that beginning in November 1993 and throughout the rest of Chong’s employment, she asked Chong to provide Chong’s work restrictions, but the only notice she ever received was the letter dated October 20, 1993, see text at page 3.8 through 4.1. She testified that Greg and Chong assured her that sewing was therapeutic and did not cause her pain. She contacted the therapist in an attempt to obtain any restrictions, but the therapist also told her that sewing was acceptable work and the motions do not hurt Chong. She also testified that during the May 13, 1994 meeting with Chong and Greg, they told her that they did not disclose any restrictions to Custom for fear of losing Chong’s job. In an effort to get Chong back to work at Custom, Lungren contacted Dr. Goff on July 6, 1994. During this conversation, she claims that she learned, for the first time, Chong’s claim against Hilton was being contested and that Chong should not be working at Custom until that claim was resolved.

[¶ 40.] In reviewing the record evidence, it is apparent that Chong failed to prove that Custom had actual knowledge that her injury was related to the work she performed at Custom. When “the failure to give notice is at issue, the claimant has the burden of showing that for some good and sufficient reason notice could not be given.” Schuck, 529 N.W.2d at 898. Here, the evidence shows that Chong and her husband chose not to provide timely notice to Custom for economic reasons; that is, they did not want Chong to lose her job. Therefore, Chong’s claim against Custom will be allowed to proceed only if she can prove that she had a “reasonable excuse” to justify the delay in providing written notification to Custom.

C. Did Chong have a “reasonable excuse” for failing to comply with the written notification requirement ?

[¶ 41.] Chong argues that she did not make a written claim against Custom before July 1, 1994 because she did not believe that she had a valid claim against Custom. Instead, she claims that the sewing she performed at Custom was beneficial to the injuries she thought were solely attributable to her prior employment with Hilton.

[¶ 42.] In determining compliance with SDCL 62-7-10, we have stated that “[t]he time period for notice or claim does not begin to run until the claimant, as a reasonable person, should recognize the nature, seriousness and probable com-pensable character of the [the] injury or disease.” Miller, 1996 SD 89, ¶ 14, 551 N.W.2d at 820. Whether the claimant’s conduct is reasonable is determined “in the light of [her] own education and intelligence, not in the light of the standard of some hypothetical reasonable person of the kind familiar to tort law.” Loewen, 1997 SD 2, ¶ 15, 557 N.W.2d at 768.

[¶ 43.] Chong claims a subjective standard applies and that she did not know that her injuries were caused by her employment at Custom. However, the standard is based on an objective reasonable person with the same education and intelligence as the claimant’s. If we were to accept Chong’s argument, every claimant would be excused from complying with the notification requirement by simply claiming that she did not, in good faith, believe that she had a compensable claim against her employer.

[¶ 44.] On September 3, 1993, Dr. Wicks warned Chong that she would have to modify her working habits if she wanted to get better. Greg testified that Dr. Goff told them during their first visit, on December 9, 1993, and thereafter that Chong should not be working at Custom if she wanted to improve. He also explained to Greg what he must do to file a workers’ compensation claim against Hilton. Greg filed the claim, which indicates that he knew how to do it and the importance of it. On February 2, 1994, Dr. Goff reported that it was not clear to what extent Chong’s work at Custom contributed to her disorder. Based on the cumulative evidence, a reasonable person, with Chong’s education and intelligence, would have known that she had a compensable claim against Custom upon receipt of the March 1 letter. In fact, as indicated, it is clear that Chong and her husband chose not to provide timely notice to Custom for their own economic reasons.

[¶ 45.] We affirm the circuit court’s determination that Chong failed to comply with the thirty-day notification requirement. Furthermore, Chong failed to prove that Custom had actual knowledge that her injury arose from her employment at Custom. Nor did Chong prove that she had a “reasonable excuse” in failing to comply with SDCL 62-7-10. Since Chong’s claim against Custom is barred, we need not address the remaining issues.

[¶ 46.] MILLER, Chief Justice, and AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.

      . Prior to working at Hilton, Chong did not have any difficulty with hands or arms, with the exception of some edema in her hands, which is the accumulation of fluid causing swelling and stiffness, as a residual effect from breast cancer surgeries. Chong had one breast removed in November 1985 and the second in January 1991. She then underwent reconstructive surgery and has two silicon implants.
      Additionally, while living in Korea, Chong was stabbed by an assailant in 1988. This stabbing resulted in the loss of her spleen and caused serious injury to her pancreas, bladder and stomach. Consequently, she is unable to lift any object in excess of fifty pounds.

      . During the course of her employment with Custom, Chong requested eleven leaves of absences. Each leave was documented, but Chong did not fill in any of these slips; they were either filled in by Greg or by one of her supervisors at Custom.

      . Prior to the 1994 amendments, SDCL 62-7-10 provided:
      Every injured employee or his representative shall immediately upon the occurrence of an injury or as soon thereafter as practicable give or cause to be given to the employer written notice of the injury and the employee shall not be entitled to a physician’s fee nor to any compensation which may have accrued under the terms of this title prior to the giving of such notice, unless it can be shown that the employer, his agent, or representative had knowledge of the injury or death, or that the person required to give such notice had been prevented from doing so by reason of physical or mental incapacity or the fraud or deceit of some third person or other equally good reason; but no compensation shall be payable unless written notice is given within thirty days after the occurrence of the injury or death unless reasonable excuse is made to the satisfaction of the department for not giving such notice.
      SDCL 62-7-10 (1993).

      . On February 22, 2000, we considered this case on briefs and affirmed by summary disposition. Appellant, Chong, filed a Petition for Rehearing. After much consideration and deliberation we granted same for several reasons, including the fact that it was a significant case which had been disposed of by summary disposition and without oral argument. The parties submitted briefs and we considered again and now we affirm again but by written opinion.


source: Caselaw Access Project

author: NEUMAN, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Christopher HAWK, Appellant.
    No. 99-826.
    Supreme Court of Iowa.
    Sept. 7, 2000.

      Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, John P. Sarcone, County Attorney, and Frank Severino and Jeff Noble, Assistant County Attorneys, for appellee.
   NEUMAN, Justice.

This is an appeal by defendant, Christopher Hawk, from the judgment and sentence imposed upon his plea of guilty to the crime of second-degree robbery. See Iowa Code §§ 711.1, .3 (1997). Defendant cites two alleged grounds for reversal: (1) the trial court’s failure to include an accounting of credit for time served in the defendant’s sentencing order, and (2) the court’s failure to appoint substitute counsel upon defense counsel’s motion to withdraw. Because we conclude that the statutes governing credit for time served do not require the judicial accounting defendant seeks and, by pleading guilty, defendant waived any alleged error regarding appointment of counsel, we affirm the judgment of the district court.

The pertinent facts are not disputed. Hawk was arrested and charged with first-degree robbery following an incident involving his son and his son’s girlfriend in a scheme to assault and rob an unsuspecting patron of a dating service. Eleven days prior to trial, Hawk’s court-appointed counsel filed a motion to withdraw. The motion alleged a breakdown in the attorney-client relationship. Evidently Hawk had missed a deposition and other scheduled appointments with counsel.

At the motion hearing held six days later, Hawk claimed his inability to meet with counsel was due to “work-related situations.” He asked for “a new lawyer, if possible” but admitted, upon questioning by the court, that he did not know how a new attorney could prepare for trial in less than a week. Further inquiry by the court revealed that discovery was completed and appointed counsel was committed to representing Hawk diligently at trial. The court overruled counsel’s motion to withdraw, encouraging Hawk and his lawyer “to get together and get ready for trial.”

Two days later, Hawk entered a plea of guilty to a reduced charge of robbery in the second degree. The plea negotiations also involved Hawk’s plea of guilty to an unrelated charge of felony drug possession. The State, in exchange, agreed to concurrent sentencing. It also declined to pursue punishment of Hawk as an habitual offender, urged the court to forego enhanced sentencing on the drug charge, and agreed to dismiss a pending failure-to-appear charge.

In the sentencing proceedings that followed, the court entered judgment against Hawk in accordance with the plea agreement. Pertinent to this appeal, neither the court’s oral pronouncement of sentence nor its written judgment entry mentioned credit for time served by Hawk following his plea of guilty or while awaiting transfer from the county jail to the department of corrections. The record reveals, however, that the sheriff certified to the clerk of court that the number of days so served was fifty-two.

This appeal by Hawk followed.

I. Scope of Review.

We review Hawk’s challenge to the trial court’s application of pertinent sentencing statutes for correction of errors at law. State v. Edgington, 601 N.W.2d 31, 32 (Iowa 1999). Hawk’s appeal of the court’s ruling on counsel’s motion to withdraw implicates his constitutional right to counsel, ordinarily reviewable by this court de novo. State v. Thompson, 597 N.W.2d 779, 782 (Iowa 1999). For reasons we will explain later in this opinion, however, we deem that argument waived.

II. Issues on Appeal.

A. Credit for time served. Hawk claims this case must be reversed and remanded for resentencing because the trial court allegedly disregarded pertinent statutes governing a defendant’s entitlement to credit for time served. Two statutes and one rule of criminal procedure are implicated by his argument. To begin, Iowa Code section 901.6 pertinently provides:

In every case in which judgment is entered, the court shall include in the judgment entry the number of the particular section of the Code and the name of the offense under which the defendant is sentenced and a statement of the days credited pursuant to section 903A 5 shall be incorporated into the sentence.

(Emphasis added.)

Section 908A.5 governs the terms of an inmate’s discharge from a penal institution. The statute authorizes credit for time served awaiting sentence as follows:

[I]f an inmate was confined to a county jail or other correctional or mental facility at any time prior to sentencing, or after sentencing but prior to the case having been decided on appeal, because of failure to furnish bail or because of being charged with a nonbailable offense, the inmate shall be given credit for the days already served upon the term of the sentence. The sheriff of the county in which the inmate was confined shall certify to the clerk of the district court from which the inmate ivas sentenced the number of days so served. The clerk of the district court shall fonvard a copy of the certification of the days served to the warden.

Iowa Code § 903.5 (emphasis added). In keeping with these statutes, Iowa Rule of Criminal Procedure 23(5) (b) directs that a defendant “shall receive full credit for time spent in custody under the sentence prior to correction or reduction.”

Hawk contends that section 901.6 “mandates” that the court include the amount of credit for time served “in its order.” The court’s failure to do so, he asserts, puts him at risk of “needlessly forfeiting liberty due to oversight, or possible scrivener’s error.” The State counters that Hawk misreads section 901.6 and its import when read in harmony with section 903A.5 and rule 23(5)(b). We agree.

It is axiomatic that courts are obliged to consider a challenged statute in its entirety and in pari materia with other pertinent statutes. State v. Byers, 456 N.W.2d 917, 919 (Iowa 1990). The last sentence in section 901.6 contains two distinct directives. The first clause tells the trial court what must be included in the judgment entry. See Iowa Code § 901.6 (requiring court to include particular Code section and name of offense under which defendant is sentenced). The second clause addresses credit for time served, and directs that a statement of the days credited “shall be incorporated into the sentence.” Id. Significantly, the credit includes post-sentence confinement in the county jail. That calculation, governed by section 903A.5 and performed by the sheriff — not the court — necessarily follows the oral rendition of sentence and the accompanying written judgment entry. The correct number of days could not logically be calculated otherwise. It is a calculation that could simply not be made by the judge at sentencing.

By its terms, section 903A.5 directs the sheriff to certify the number of days served to the clerk of court for the district “from which the inmate ivas sentenced.” (Emphasis added.) Thereafter the calculation, as certified by the clerk, is forwarded to the warden. Iowa Code § 903A.5. Thus the inmate receives the benefit of credit for all time served under the sentence and that credit is “incorporated” into the sentence in accordance with section 901.6. .See Black’s Law Dictionary 769 (7th ed.1999) (“incorporate” means “[t]o combine with something else,” or “[t]o make the terms of another (esp.earlier) document part of a document by specific reference”).

We therefore reject Hawk’s contention that the trial court must, at sentencing or as part of a written judgment entry, announce the credit to which the defendant is entitled for time served. Neither the plain language of section 901.6 nor the practicalities of sentencing, outlined above, dictate such a requirement. To the extent Hawk draws his argument from a concession relied upon by our court of appeals to compel resentencing in State v. Bean, 474 N.W.2d 116, 122 (Iowa App.1991), we hereby overrule that portion of the opinion. We likewise reject dicta in State v. Capper that may be head to impose this ministerial function on the court. 639 N.W.2d 361, 366 (Iowa 1995) (“The court is required to incorporate into the sentence a statement of the days to be credited.”)

We recognize that defendants may derive some reassurance from a court’s statement that credit for time served will be allowed. But the fact that many judges include such a statement in the sentencing colloquy is essentially immaterial. The important concern, from the defendant’s perspective, is that the proper credit is calculated pursuant to statute and incorporated into the sentence ultimately served. See Capper, 539 N.W.2d at 367 (ordering remand for resentencing where district court failed to grant inmate credit for court-ordered confinement at Iowa Medical and Classification Center). The record before us contains no proof that the governing statutes were not followed here. No ground for reversal appears.

B. Denial of substitute counsel. As an alternative ground for reversal, Hawk insists the court erred when it overruled defense counsel’s motion to withdraw. He claims prejudice from “being forced to plead guilty using the services of an attorney whose loyalty to his cause must be questioned.”

Given the favorable terms of the plea agreement, and the discretionary nature of the court’s ruling on the eve of trial, we harbor serious reservations about the merits of Hawk’s claim. See State v. Brooks, 540 N.W.2d 270, 272 (Iowa 1995). But we need not address the argument because error, if any, in the court’s ruling was waived by Hawk upon his plea of guilty.

“With limited exceptions, not pertinent here, a guilty plea taken in conformity with Iowa Rule of Criminal Procedure 8(2)(b) waives all defenses and objections.” State v. Antenucci, 608 N.W.2d 19, 19 (Iowa 2000). A defendant who seeks to challenge a guilty plea must do so by motion in arrest of judgment filed prior to sentencing. Id.; State v. Worley, 297 N.W.2d 368, 370 (Iowa 1980). “Failure to do so precludes the right to assert the challenge on appeal.” Antenucci, 608 N.W.2d at 19; Iowa R.Crim. P. 23(3)(a).

The record before us reveals strict compliance by the trial court with the plea colloquy requirements of rule 8(2)(b). When asked by the court whether he was satisfied with the discussion and advice received from his counsel concerning the plea, Hawk replied, “Yes, sir.” Thereafter the court advised Hawk of his limited right to challenge the plea by motion in arrest of judgment. No such motion was filed. Hawk’s belated claim that the plea proceedings were tainted by the court’s refusal to appoint substitute counsel has been waived.

AFFIRMED.


author: CARTER, Justice.

text:
    Ronal Alan RAREY, Appellant, v. STATE of Iowa, Appellee.
    No. 99-0847.
    Supreme Court of Iowa.
    Sept. 7, 2000.
    Dennis A. Bjorklund, Coralville, for appellant.
    Thomas J. Miller, Attorney General, and William A. Hill, Assistant Attorney General, for appellee.
   CARTER, Justice.

Postconviction applicant, Roñal Alan Rarey, challenges the district court’s dismissal of his application on mootness grounds. Rarey contends his application is not moot because he must successfully challenge the disciplinary sanctions imposed against him in order-to file a civil rights action for alleged constitutional deprivations. After reviewing the record and considering the arguments presented, we affirm the judgment of the district court.

On January 29, 1999, Rarey filed a post-conviction relief application, seeking a restoration of ninety days of good-conduct time stemming from an escape violation, and also seeking credit for 160 days of jail time in other jurisdictions awaiting extradition following his capture. Because Rar-ey had discharged his sentence on December 20, 1998, the State requested that the action be dismissed as moot. The district court agreed and dismissed the application.

In Wilson v. Farrier, 372 N.W.2d 499 (Iowa 1986), this court concluded that an inmate’s postconviction challenge to a prison disciplinary action was moot because he had been paroled. If parole status, which carries the possibility of a return to prison for the unexpired period of confinement, moots a challenge to loss of good-time credit, then, a fortiori, an absolute discharge moots such consideration.

Rarey relies on Leonard v. Nix, 55 F.3d 370 (8th Cir.1995), a federal habeas corpus action in which the court rejected an assertion of mootness following a prisoner’s absolute discharge because of “collateral consequences.” The first collateral consequence found to exist was that the petitioner had been returned to prison on a new conviction, and pursuant to prison rules, his prior rule violation could adversely affect his status while serving time on his latest conviction. A second collateral consequence was, the federal court believed, the inability of the petitioner to bring an action under 42 U.S.C. § 1983 until he had successfully challenged the disciplinary violation. In regard to the latter conclusion, the court relied on Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), as precluding a § 1983 claim for improper conviction or improper length of confinement until the petitioner has successfully challenged the conviction or the length of confinement.

The determination made in Leonard v. Nix involved federal law and is not binding on this court. Manifestly, the conclusions reached in Leonard are at odds with our decision in Wilson v. Farrier. Moreover, we believe, the interpretation that Leonard placed on the Supreme Court’s Heck decision has been substantially contradicted by a later ruling of the Court in Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).

In Spencer four members of the Court concluded that Heck’s requirement of first setting aside the conviction or period of confinement as a condition for filing a § 1983 action only applied to persons who were still in custody. Spencer, 523 U.S. at 17-21, 118 S.Ct. at 988-90, 140 L.Ed.2d at 57-59. Eight justices in Spencer held that, even if Heck would bar a § 1983 action, that deprivation is not a sufficient collateral consequence to avoid a mootness determination. Spencer, 523 U.S. at 17, 118 S.Ct. at 988, 140 L.Ed.2d at 56. We are not persuaded that Rarey’s claim of collateral consequence avoids a finding of mootness in the present case.

Nor do we find sufficient public interest in the issues presented in Rarey’s postcon-viction action to warrant our consideration of the case in the face of the mootness of those issues. These claims involve issues that relate peculiarly to Rarey’s particular situation.

We have considered all issues presented and conclude that Rarey’s application is moot. The judgment of the district court is affirmed.

AFFIRMED.

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


author: LAVORATO, Justice. CARTER, Justice

text:
    STATE of Iowa, Appellant, v. Michael Gallagher BEECHER, Appellee.
    No. 99-1358.
    Supreme Court of Iowa.
    Sept. 7, 2000.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Linda Myers, Assistant County Attorney, for appellant.
    Linda A. Hall of Gallagher, Langlas & Gallagher, P.C., Waterloo, for appellee.
   LAVORATO, Justice.

The State sought discretionary review of a district court ruling that ordered the State to either (1) dismiss pending contempt proceedings against Michael Gallagher Beecher or (2) move to amend a pending stalking charge in a separate action to remove the allegation that the stalking was committed in a series of violations of a criminal protective order. In so ruling, the district court concluded that double jeopardy prevents the State from prosecuting Beecher both for stalking and for violating the protective order.

We granted discretionary review and now conclude the district court erred in entering the order. We reverse and remand for further proceedings.

On September 8, 1998, the State charged Beecher with seven counts of harassment. In that case, the district court entered a protective order prohibiting Beecher from having contact with the victim, Angela Renee Rogers. Pursuant to a plea agreement with the State, Beecher pled guilty to two of the seven counts and received a deferred judgment with one year of unsupervised probation. Additionally, the court ordered that the previously entered protective order remain in effect during the period of probation.

In the following year, Beecher was charged with contempt for violating the protective order on three separate occasions — -March 3, March 31, and April 27, 1999. A magistrate ordered that all three charges of contempt be tried on July 29, 1999.

On May 7, 1999, the State charged Beecher with stalking under Iowa Code sections 708.11(2) (1997) and 708.11(3)(b)(l), as amended. See 1998 Iowa Acts ch. 1021, § 4.- Specifically, the trial information charged that Beecher “on or about May 1998 through May 1999 ... did ... [s]talk Angela Rogers ... while being subject to restrictions contained in a criminal protective order which prohibited contact between Michael Gallagher Beecher and Angela Rogers ... [e]ontrary to and in violation of [section] 708.11(2) and [section] 708.11(3)(b)(l) of the Iowa Criminal Code.” Stalking under amended Iowa Code section 708.11(3)(b)(l) is a class “D” felony. Trial for the stalking charge was scheduled for July 6, 1999.

On May 13 Beecher filed a motion to dismiss in both cases. He alleged a violation of his Fifth Amendment right against double jeopardy. In response, the State moved to consolidate the two cases. Beecher initially resisted the State’s consolidation motion, but later withdrew his resistance to avoid waiver of his double jeopardy claim. See State v. Lange, 495 N.W.2d 105, 108 (Iowa 1992) (“If a defendant expressly asks for separate trials on offenses that, if the government brought and tried separately, would present double jeopardy problems, then the prohibition against multiple prosecutions for ‘the same offense’ does not apply.”).

On August 3 the district court ruled on the motion to dismiss. The court phrased the question raised in Beecher’s motion to dismiss as “whether the State can punish him separately for each of those acts and then also punish him in a criminal prosecution for the same acts offered serially as evidence of a ‘course of conduct.’ ”

The district court concluded that the separate alleged violations of the protective order were lesser included offenses of the stalking charge. Therefore, the three violations would necessarily be merged in the stalking charge under Iowa Code section 701.9 unless the legislature intended to establish multiple punishments for the same offense. On this last question, the court stated that it could

see no reason to conclude that the legislature, having substantially increased the penalties for violating a [protective] order if the violation is part of a continued course of conduct, intended that each separate incident which makes up part of the course of conduct should also be punished individually as a less serious offense.

In light of this conclusion, the district court ruled that it was a violation of Beecher’s right against double jeopardy for the State to prosecute him both on the stalking charge and the lesser included violations. The court sustained Beecher’s motion to dismiss in part and ordered that

[w]ithin ten days after entry of this order the State shall either dismiss the contempt proceedings for alleged violations of a [protective] order or else move to amend the trial information in the stalking case to remove the allegation that the stalking was committed in violation of a criminal protective order.

Because of its ruling, the district court determined that the State’s motion to consolidate was moot.

Later, the district court overruled the State’s motion to reconsider. The State then sought discretionary review of the district court’s order. We granted discretionary review and stayed all matters in the district court pending appellate review.

The parties agree that the proceeding and punishment for the protective-order violations are criminal in nature, and for that reason, traditional double jeopardy analysis applies. For purposes of this opinion, we assume the same.

Our review here is for correction of errors at law. State v. Dixon, 534 N.W.2d 435, 438 (Iowa 1995) (“We review for errors of law a trial court’s grant of a motion to dismiss criminal charges on the ground that double jeopardy forbids reprosecution of the defendant.”).

I. The Issues.

The Fifth Amendment of the Federal Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. This clause provides protection against the following: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. State v. McKettrick, 480 N.W.2d 52, 56 (Iowa 1992) (citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969)). These protections are enforceable against the states through the Fourteenth Amendment of the Federal Constitution. See Dixon, 534 N.W.2d at 439 (citing Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707, 716 (1969)).

A. Whether the district court erred when it ordered the State to either dismiss the pending contempt proceeding or to amend the stalking charge. The purpose of the protections against double jeopardy is “to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.” Green v. United States, 355 U.S. 184, 187, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204 (1957). Underlying this purpose is the idea

that the State with all its resources and power should not be allowed to make repeated attempts, to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Id. at 187-88, 78 S.Ct. at 223, 2 L.Ed.2d at 204.

Whether double jeopardy is implicated depends upon whether jeopardy has attached. See Serfass v. United States, 420 U.S. 377, 390-91, 95 S.Ct. 1055, 1064, 43 L.Ed.2d 265, 275 (1975) (quoting United States v. Jorn, 400 U.S. 470, 480, 91 S.Ct. 547, 554, 27 L.Ed.2d 543, 554 (1971)) (“[T]he ‘constitutional policies underpinning the Fifth Amendment’s guarantee’ are not implicated before that point in the proceedings at which ‘jeopardy attaches.’ ”)

As it did in the district court, the State asserts jeopardy has not yet attached, and therefore Beecher’s double jeopardy claim is not ripe for judicial determination. We agree. *

Jeopardy does not attach until a defendant is put to trial before the trier of facts, whether the trier be a jury or a judge. State v. Harrison, 578 N.W.2d 234, 238 (Iowa 1998) (citing Jorn, 400 U.S. at 479, 91 S.Ct. at 554, 27 L.Ed.2d at 553). When a defendant faces trial by jury, jeopardy attaches when the jury is empanelled and sworn. Crist v. Bretz, 437 U.S. 28, 35, 98 S.Ct. 2156, 2161, 57 L.Ed.2d 24, 31 (1978). The rationale for this “lies in the need to protect the interest of an accused in retaining a chosen jury.” Id. Conversely, “[i]n a bench trial, double jeopardy attaches when the judge begins to receive evidence.” State v. Taft, 506 N.W.2d 757, 760 (Iowa 1993) (citing United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 1353, 51 L.Ed.2d 642, 650 (1977)).

These principles of double jeopardy do not vary even though an accused may raise defenses or objections before trial that are capable of determination without trial of the general issue. Serfass, 420 U.S. at 391, 95 S.Ct. at 1064, 43 L.Ed.2d at 276. Nor do they vary even though the accused must raise certain other defenses or objections before trial. Id.

Here, we have two pending cases awaiting trial. In neither case has a jury been empanelled and sworn. And in neither case has a trial judge started taking evidence. Therefore, jeopardy has not attached. Until jeopardy attaches in one of those trials, there cannot be a threat of double jeopardy arising out of the other trial. This is so even if Beecher is correct in his assertion that he faces multiple punishments for the same offense. Beecher’s double jeopardy claim is therefore not ripe for judicial determination. The district court erred in entering its conditional order of dismissal.

B. Whether Beecher faces multiple punishments for the same offense. Because the issue may arise in further proceedings on remand, we address whether Beecher — as he contends — faces multiple punishments for the same offense. In support of his contention, Beecher makes two arguments. First, the offense of violating a protective order is a lesser included offense of stalking. Second, the State is seeking to punish him for a continuous offense, ie., stalking, as well as the individual acts that form the basis for the ongoing offense, ie., violations of a protective order.

The district court relied on both arguments in concluding Beecher faces multiple punishments for the same offense. For reasons that follow, we reject both arguments.

1. Lesser included offenses. Our merger statute, Iowa Code section 701.9, provides that “[n]o person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted.” If a jury returns a verdict that conflicts with this statute, the district court must enter judgment on the greater offense only. Iowa Code § 701.9. In several cases, we have recognized that this statute codifies the double jeopardy protection against multiple punishments for the same offense. See, e.g., State v. Daniels, 588 N.W.2d 682, 683 (Iowa 1998).

Like the Double Jeopardy Clause, section 701.9 “operates as a check on the courts, not the legislature.” Id. The Double Jeopardy Clause does not prohibit the legislature from defining crimes and fixing punishment. Id. at 684. Section 701.9 merely prohibits a court “from imposing a greater punishment than the legislature intended.” State v. Halliburton, 589 N.W.2d 339, 344 (Iowa 1995).

When more than one offense is charged from a single incident, we may infer legislative intent to impose multiple punishment from the plain language of the relevant statutes. State v. Perez, 563 N.W.2d 625, 628 (Iowa 1997). However, here, the district court applied the familiar “legal elements test.” And on appeal, the dispute centers on the application of that test. The test involves comparing the elements of the two offenses to determine “whether it is possible to commit the greater offense without committing the lesser offense.” Halliburton, 539 N.W.2d at 344.

We proceed to compare the elements of both offenses under the legal-elements test. The State must prove the following elements to establish a violation of a protective order: The defendant (1) was subject to a protective order and (2) violated that order. See Iowa Code § 236.8.

Iowa Code section 708.11(2) provides that a person commits stalking when all of the following occur:

a. The person purposefully engages in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to, or the death of, that specific person or a member of the specific person’s immediate family.
b. The person has knowledge or should have knowledge that the specific person will be placed in reasonable fear of bodily injury to, or the death of, that specific person or a member of the specific person’s immediate family by the course of conduct.
c. The person’s course of conduct induces fear in the specific person of bodily injury to, or the death of the specific person or a member of the specific person’s immediate family.

Beecher attempts to uphold the district court’s lesser-included-offense analysis by insisting that the provisions of Iowa Code section 708.11(3)(b)(l) (1997), pertaining to the violation of a protective order, are an element of the crime of stalking. Therefore, Beecher argues, a person could not commit stalking without also having violated a protective order.

Iowa Code section 708.11(3)(b) (1997) provided that

[a] person who commits stalking in violation of this section commits a class “D” felony if any of the following apply: '
(1) The person commits stalking in violation of a criminal or civil protective order or injunction, or any other court order.

Beecher contends that, although listed in a separate subsection, the provision regarding violation of a criminal protective order constitutes an element of the crime of stalking. The problem with Beecher’s contention and the ruling of the district court is that both have apparently- overlooked an amendment to section 708.11(3)(b)(1). In 1998, Iowa Code section 708.11(3)(b)(l) was amended. See 1998 Iowa Acts ch. 1021, § 4. The statute as amended now reads

[a] person who commits stalking in violation of this section commits a class “D” felony if any of the following apply:
(1) The person commits stalking while subject to restrictions contained in a criminal or civil protective order or injunction, or any other court order which prohibits contact between the person and the victim, or while subject to restrictions contained in a criminal or civil protective order or injunction or other court order which prohibits contact between the person and another person against whom the person has committed a public offense.

Iowa Code § 708.11(3)(b)(l) (1999).

The State charged Beecher under the amended statute, and Beecher has made no assertion that he was improperly charged. The district court, however, over the State’s objection based its analysis on the old statute. The error was. harmless because, as we shall see, contrary to the district court’s analysis, violation of a protective order is not an element of the stalking offense. Nor is the new provision that the “person commits stalking while subject to restrictions in a criminal ... protective order” an element of the stalking offense.

Our cases are clear that stalking contains only three elements — the elements found in section 708.11(2). See State v. Limbrecht, 600 N.W.2d 316, 318 (Iowa 1999) (“Iowa’s stalking statute, section 708.11(2), contains three essential elements.”); State v. Mulvany, 600 N.W.2d 291, 293 (Iowa 1999) (noting the three elements of stalking are found in Iowa Code section 708.11(2)).

The subsection pertaining to protective orders (Iowa Code section 708.11(3)(b)(l)) addresses the degree of the stalking offense. That subsection is simply a sentencing enhancement for an offense that would otherwise be an aggravated misdemeanor. See Iowa Code § 708.11(3)(c) (“A person who commits stalking in violation of this section commits an aggravated misdemeanor or if the offense is a first offense which is not included in paragraph “b ”.”).

We find support for pur conclusion in the language of the statute that provides that “[a] person who commits stalking in violation of this section commits a class “D” felony if any of the following apply....” Iowa Code § 708.11(3)(b) (emphasis added). This language clearly indicates that the provisions of section 708.11(3)(b) apply only once a person has already been convicted of stalking. What this language suggests is that the provisions in section 708.11(3)(b), including the provision dealing with protective orders (section 708.11(3)(b)(l)), are not elements of the offense of stalking, but rather are merely predicates to an enhanced punishment. We also note that the explanation to the 1998 amendment to section 708.11(3)(b)(l) suggests this provision is a punishment enhancement. See 1998 Iowa Acts ch. 1021 (“An act relating to certain crimes against persons ... by providing for the application of enhanced stalking penalties for persons who are the subject of certain restraining or protective orders-”).

We have previously indicated that predicates used only for enhancement purposes are not elements of the offense charged. See State v. Tobin, 333 N.W.2d 842, 845 (Iowa 1983) (holding that a recidivist provision in theft statute, providing that theft of property not exceeding $500 in value by one who has before been twice convicted of theft constitutes theft in the second degree, does not violate protection against double jeopardy; prior convictions are predicates for enhanced punishment, rather than elements of current theft charge, and hence, current charge is not reprose-cution of prior offenses).

Reviewing similarly worded stalking statutes, other courts have concluded that provisions relating to the violation of a restraining order do not define the crime of stalking but rather merely create a punishment enhancement. See, e.g., People v. Kelley, 52 Cal.App.4th 568, 576, 60 Cal.Rptr.2d 653, 658 (1997).

• We therefore conclude that neither the language under former section 708.11(3)(b)(l) — violation of a criminal protective order — nor the language under the amended version of this provision- — -while being subject to restrictions contained in a criminal protective order — makes either version a lesser included offense of stalking. Former section 708.11(3)(b)(l) and its current version address only the degree of the offense for sentencing purposes and do not describe or define an element of stalking itself. Therefore, it is possible to commit the offense of stalking absent the factual circumstances under the provisions of former section 708.11(3)(b)(l) or its current version.

In sum, what we have here are two offenses that are not the same — violation of a criminal protective order and stalking. Multiple punishments can be assessed in these circumstances without violating double jeopardy principles. See State v. Smith, 573 N.W.2d 14, 19 (Iowa 1997) (“Multiple punishments can be assessed after a defendant is convicted of two offenses that are not the same.”); see also Kelley, 52 Cal.App.4th at 576, 60 Cal.Rptr.2d at 659.

2. Continuous offense. At the heart of Beecher’s alternative theory is the “continuous offense doctrine.” According to this doctrine, double jeopardy “prohibits multiple convictions of a defendant who commits only one, continuous offense.” State v. Jacobs, 607 N.W.2d 679, 688 (Iowa 2000).

Beecher claims that the State is seeking to punish him for an ongoing offense— stalking — as well as the individual acts that form the basis for the ongoing offense — the violations of the protective order. Beecher’s argument is based on a faulty premise. The faulty premise is that the violations of the protective order form the basis of the stalking offense. As we mentioned, the violations of the protective order do not form the basis of the stalking offense. The State is therefore not seeking to punish Beecher for an ongoing offense as well as the individual acts that form the basis for the ongoing offense.

Moreover, even assuming stalking is a continuing crime, the continuous offense doctrine does not apply here. The continuous offense doctrine prohibits multiple convictions for a continuing crime when such convictions are based on the same course of conduct that gives rise to the crime. Here, the State has not charged Beecher with multiple offenses of stalking.

III. Disposition.

Because we conclude jeopardy has not yet attached, Beecher’s double jeopardy claim is not ripe for judicial determination. The district court therefore erred in entering its conditional order of dismissal. We reverse and remand for further proceedings.

REVERSED AND REMANDED.

All justices concur except CARTER, J., who concurs specially, and NEUMAN, J., who takes no part.

CARTER, Justice

(concurring specially).

I concur in the result and in all portions of the court’s opinion except those statements concerning merger that would permit a search for legislative intent beyond the application of section 701.9.


author: CADY, Justice.

text:
    STATE of Iowa, Appellee, v. Michael Allen CARPENTER, Appellant.
    No. 99-1491.
    Supreme Court of Iowa.
    Sept. 7, 2000.

      John C. Rausch of the Rausch Law Firm, Waterloo, for appellant.
    Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Joel Dalrymple, Assistant County Attorney, for appellee.
   CADY, Justice.

This appeal requires us to determine whether a juvenile prosecuted and sentenced as an adult for the crime of robbery in the second degree must serve 85% of the sentence under the minimum sentence provisions of Iowa Code section 902.12 (1999). We conclude the minimum sentence provisions apply and affirm the district court.

I. Background Facts and Proceedings.

Michael Carpenter was charged with numerous criminal offenses, including two counts of robbery in the second degree, in violation of Iowa Code sections 711.1 and 711.3 (1999). Although Carpenter was seventeen years old at the time, he was excluded from the jurisdiction of the juvenile court and prosecuted as an adult under section 232.8(l)(c). The district court denied Carpenter’s request to be transferred to juvenile court.

Carpenter subsequently entered a plea of guilty to the charges, including the two counts of robbery in the second degree. Prior to sentencing, Carpenter filed a motion with the district court asking his sentence for robbery in the second degree be excluded from section 902.12. This section requires a person serving a sentence for certain forcible felonies, including robbery in the second degree, to serve 100% of the maximum term of incarceration, subject to a reduction of up to 15% for good behavior. Iowa Code § 902.12; see also Iowa Code § 903A.2(l)(b). This section is commonly known as the “85% rule.”

Carpenter claimed the 85% rule did not apply to his sentence because the statute granting the district court jurisdiction over his case, section 232.8(l)(c), referred only to sentencing pursuant to section 902.9, the general sentencing statute applicable to felony offenses, and did not specifically mention the 85% rule under section 902.12. He argued the exclusion of the 85% rule from the jurisdictional provisions under section 232.8(l)(c) revealed the legislature’s intent that the rule not apply to juvenile offenders.

The district court found section 902.12 did apply to the sentence. Carpenter was sentenced on the two counts of robbery in the second degree to two concurrent terms of incarceration not to exceed ten years under section 902.9. Carpenter appeals. He claims his sentence is not subject to the 85% rule under section 902.12.

The issue of statutory interpretation presented in this case is identical to the issue presented in State v. Iowa District Court, 616 N.W.2d 575 (Iowa 2000), an opinion filed contemporaneously with this opinion. Nevertheless, the arguments advanced by the parties differ. Although we reach the same result in this case as we do in Iowa District Court, we separately address the different argument raised in this case.

II. Scope of Review.

We review issues involving the interpretation of a statute for the correction of errors at law. Iowa R.App. P. 4; State v. Schultz, 604 N.W.2d 60, 62 (Iowa 1999). We are not bound by the application of the legal principles by the district court. Schultz, 604 N.W.2d at 62.

III. Statutory Interpretation.

When confronted with an issue involving the interpretation of a statute, we begin with the principles of statutory construction. Doe v. Ray, 251 N.W.2d 496, 500 (Iowa 1977). The polestar of statutory interpretation is the intent of the legislature. Schultz, 604 N.W.2d at 62. We seek to ascertain and effectuate the true legislative intent. Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Mobil Oil Corp., 606 N.W.2d 359, 363 (Iowa 2000). We must not only examine the language of the statute, but also its underlying purpose and policies, as well as the consequences stemming from different interpretations. Id. at 364. In doing so, we must construe the statute in its entirety. Id. at 365. If more than one statute relating to the subject matter at issue is relevant to the inquiry, we consider all the statutes together in an effort to harmonize them. State v. Dann, 591 N.W.2d 635, 638 (Iowa 1999); Doe, 251 N.W.2d at 501. Harmonization of the applicable statutes evidences the true intent of the legislature. State v. Peterson, 327 N.W.2d 735, 738 (Iowa 1982).

In determining the intent of the legislature, we will not construe the language of a statute in a manner that will produce an absurd or impractical result. Schultz, 604 N.W.2d at 62; Shaw v. Soo Line R. Co., 463 N.W.2d 51, 54 (Iowa 1990). We presume the legislature intends a reasonable result when it enacts a statute. State v. Pace, 602 N.W.2d 764, 772 (Iowa 1999).

IV.Iowa Code Section 232.8(l)(c).

Generally, the juvenile court has exclusive original jurisdiction over a child alleged to have committed a delinquent act. Iowa Code § 232.8(1)(a); State v. Edgington, 601 N.W.2d 31, 32 (Iowa 1999). However, section 232.8(l)(c) articulates an exception to this general rule. Section 232.8(l)(c) provides in pertinent part:

Violations of a child, age sixteen or older, ... which constitute a forcible felony are excluded from the jurisdiction of the juvenile court and shall be prosecuted as otherwise provided by law unless the court transfers jurisdiction of the child to the juvenile court upon motion and for good cause. A child over tuhom jurisdiction has not been transferred to the juvenile court, and who is convicted of a violation excluded from the jurisdiction of the juvenile court under this paragraph, shall be sentenced pursuant to section 124.401B, 902.9, or 903.1.

Iowa Code § 232.8(l)(c) (emphasis added).

Thus, older children who are convicted of certain criminal offenses excluded from the jurisdiction of the juvenile court, including forcible felonies, are sentenced under either section 124.401B, 902.9, or 903.1. See Edgington, 601 N.W.2d at 33. The only section applicable to this case is section 902.9. This section establishes the maximum sentence for felony offenses. Section 903.1 establishes the maximum sentence for misdemeanor offenses, while section 124.401B establishes the maximum sentence for certain drug offenses. The issue we face is whether other statutes relating to a sentence are inapplicable because they are not specifically mentioned in section 232.8(l)(c). In particular, we must decide if the minimum sentence provisions of sections 902.12 and 903A.2 apply to children sentenced under section 232.8(l)(c).

We have previously recognized that section 232.8(l)(c) expresses our legislature’s general belief that older juveniles who commit certain crimes, including forcible felonies, should face adult discipline and legal restraint. State v. Terry, 569 N.W.2d 364, 367 (Iowa 1997). Thus, section 232.8(l)(c) automatically subjects such juveniles to prosecution as adults and sentencing in accordance with section 902.9. Edgington, 601 N.W.2d at 33-34. There is nothing in the language of section 232.8(l)(c) to suggest that “juveniles who commit forcible felonies and are automatically subject to prosecution as adults are to be subject to sentencing limits any different than those imposed upon similarly-situated adults.” Id. at 34.

Our legislature’s intent to treat certain juvenile offenders as adult offenders is consistent with the application of the minimum sentence provisions of section 902.12 to a juvenile sentenced for one of the crimes applicable to the minimum sentence provisions. Iowa Dist. Ct., 616 N.W.2d at 581 (concluding the legislature intended courts to supplement section 902.9 with other relevant statutes when sentencing a defendant subject to section 232.8(l)(c)); see also Edgington, 601 N.W.2d at 33 (juvenile sentenced for a forcible felony under section 232.8(l)(c) is, like an adult sentenced for the same offense, ineligible for a deferred judgment under section 907.3); State v. Gilliland, 604 N.W.2d 666, 667 (Iowa 2000) (statutory restrictions denying deferred judgments to adults convicted of forcible felonies apply to juveniles over whom jurisdiction originates in the district court under section 232.8(l)(c)). There is no language in either section 232.8(l)(c) or section 902.12 excluding juveniles prosecuted as adults from the minimum sentence provisions. Furthermore, section 902.12 applies to all persons sentenced under section 902.9 who are serving a sentence for a crime specifically made subject to the minimum sentence provisions.

Notwithstanding, Carpenter argues that the failure of section 232.8(l)(c) to specifically refer to the minimum sentence provisions of section 902.12 implies the legislature intended to exclude the minimum sentence provisions for juveniles. He claims the legislature would have specifically mentioned section 902.12 in section 232.8(l)(e) if it intended the minimum sentence provisions to apply.

We acknowledge the rule of statutory construction that legislative intent can be “expressed by omission as well as by inclusion.” Wiebenga v. Iowa Dep’t of Transp., 530 N.W.2d 732, 735 (Iowa 1995) (quoting Barnes v. Iowa Dep’t of Transp., 385 N.W.2d 260, 263 (Iowa 1986)). Thus, the express mention of one thing implies the exclusion of others not mentioned. Callender v. Skiles, 591 N.W.2d 182, 186 (Iowa 1999). However, it does not necessarily follow that the failure to mention section 902.12 implies its exclusion.

The rule that inclusion implies exclusion is a useful tool of statutory construction, but is subordinate to the primary rule that legislative intent governs statutory interpretation. 2A Norman J. Singer, Sutherland Statutory Construction § 47.23, at 315 (6th ed.2000) [hereinafter Singer]. It is not a rule of law, but “a product of ‘logic and common sense.’ ” 2A id. § 47.24, at 315, 319. It embraces the teaching of common experience that “when people say one' thing they do not mean something else,” and is closely tied to the rule that the plain meaning of a statute must be observed. 2A id. § 47.25, at 327; see also Vale v. Messenger, 184 Iowa 553, 168 N.W. 281 (1918). Thus, it does not apply if there is a “special reason for mentioning one thing and none for mentioning another which is otherwise within the statute.” 2A Singer § 47.23, at 318 (citing Farish for Farish v. Courion Indus., Inc., 754 F.2d 1111 (4th Cir.1985)). Furthermore, the rule is not applied where there is no evidence of legislative intent for it to apply. 2A Singer § 47.24, at 325.

We conclude the omission of section 902.12 from section 232.8(l)(c) does not imply the provisions of section 902.12 are excluded from the sentence served by a juvenile for a forcible felony applicable to section 902.12. The clear intent of section 232.8(l)(c) is to subject certain juvenile offenders to the same treatment as adult offenders. Our legislature placed no limitations on this intent. See, e.g., Iowa Code § 232.45(14) (expressly providing that the mandatory minimum sentence in section 124.413 shall not apply to a child waived to district court for prosecution of certain violations of chapter 124). Furthermore, there is no need for section 232.8(l)(c) to specifically mention section 902.12. Section 902.12 necessarily applies to sentences imposed under section 902.9.

We also observe that if our legislature intended to exclude sentencing provisions not specifically mentioned in section 232.8(l)(c), then not only would Carpenter be excluded from the 85% rule under section 902.12, but he would be excluded from other similar provisions such as reduction for good time under section 903A.2 and credit for time served under section 903A.5. We believe this interpretation would lead to absurd results which our legislature did not intend.

V. Conclusion.

We conclude our legislature intended all provisions relating to a sentence apply to a juvenile sentenced under section 232.8(l)(c). We affirm the district court.

AFFIRMED.

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

      . Robbery in the second degree is a forcible felony. Iowa Code § 702.11 (1999). Section 232.8(l)(c) excludes forcible felonies from the jurisdiction of the juvenile court when committed by a child who is at least sixteen years old, but permits the district court to transfer the child to juvenile court for good cause.

      . The defendant in Iowa District Court also claimed the statute should not be interpreted under the ripeness doctrine until he receives notice of release on parole or work release. We need not address this issue.


author: TERNUS, Justice.

text:
    In re the Detention of Elroy MORROW, Appellant.
    No. 99-0846.
    Supreme Court of Iowa.
    Sept. 7, 2000.

      Kent A. Simmons, Davenport, for appellant.
    Thomas J. Miller, Attorney General, and Scott D. Brown and Roxann M. Ryan, Assistant Attorneys General, for appellee State.
   TERNUS, Justice.

The appellant, Elroy Morrow, appeals an order committing him to the custody of the director of the Iowa Department of Human Services for treatment under Iowa Code chapter 229A, Iowa’s Sexually Violent Predator Act. Morrow makes two arguments on appeal: (1) he contends the Act violates his right to equal protection; and (2) he asserts the trial process established by the Act violates his right to due process. We find no merit in these arguments and, therefore, we affirm.

I. Statutory Framework.

Before we discuss Morrow’s claims, it is helpful to briefly review the pertinent parts of chapter 229A. Chapter 229A allows the State to seek a court order committing a presently-confined sexually violent predator to the custody of the Department of Human Services (DHS) for control, care, and treatment. See Iowa Code §§ 229A.4, .7. The Act defines a “sexually violent predator” as

a person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality which makes the person likely to engage in predatory acts constituting sexually violent offenses, if not confined in a secure facility.

Id. § 229A.2(8). “Mental abnormality” is defined in the statute as

a congenital or acquired condition affecting the emotional or volitional capacity of a person and predisposing that person to commit sexually violent offenses to a degree which would constitute a menace to the health and safety of others.

Id. § 229A.2(3).

Upon the filing of a petition, the court must make a preliminary determination that probable cause exists to believe that the respondent named in the petition is a sexually violent predator. See id. § 229A.5(1). If a preliminary determination of probable cause is made, the respondent is notified of the petition and a probable cause hearing is held. See id. § 229A.5(l)-(2). If, after hearing, the court finds probable cause to exist, the court must direct that the respondent be transferred to an appropriate secure facility for evaluation. See id. § 229A.5(5).

A trial to determine whether the respondent is a sexually violent predator is required within sixty days of the probable cause hearing. See id. § 229A.7(2). “The respondent, the attorney general, or the judge shall have the right to demand that the trial be before a jury.” Id. At trial, the State must establish beyond a reasonable doubt that the respondent is a sexually violent predator. See id. § 229A.7(3). If such a finding is made, the court must commit the respondent to the custody of DHS “for control, care, and treatment until such time as the person’s mental abnormality has so changed that the person is safe to be at large.” Id.

II. Background Facts and Proceedings.

Morrow was convicted in 1993 of sexual abuse in the third degree. The victim of the abuse was an unrelated thirteen-year-old boy. Morrow was incarcerated for this offense with a scheduled release date of August 24,1998.

Prior to his scheduled release, the State filed a petition in the district court alleging Morrow is a sexually violent predator as defined in chapter 229A. The State asked the court to order Morrow committed for control, care, and treatment pursuant to the provisions of chapter 229A until such time as he is safe to be returned to the community at large. After a determination was made that probable cause existed to believe that Morrow was a sexually violent predator, the court ordered that he be detained in the county jail upon his release from prison, pending trial on the State’s petition.

Prior to trial, Morrow filed pre-trial motions raising several claims. Two of those claims are asserted on appeal. First, Morrow claimed that his right to equal protection was violated because the Act singled out sexually violent predators on the basis of perceived future dangerousness, whereas a large portion of the prison population were equally prone to violence and recidivism upon release. He also argued that the statute’s focus on prior crimes and bad acts, combined with the statutory provision allowing the State to demand a jury trial, was fundamentally unfair, violating his right to due process. The district court found no merit in these claims and the case proceeded to trial.

At the time scheduled for trial, the parties informed the court that they had agreed to submit the case on a stipulated factual record. In view of the stipulated record, the State withdrew its prior request for a jury trial. The State then submitted the following evidence, without objection from the respondent: (1) evidence of Morrow’s prior convictions of sexually violent offenses; (2) an expert evaluation of Morrow; (3) affidavits from the victims regarding their sexual contact with Morrow; (4) an affidavit from a correctional counselor that Morrow did not complete the sex offender treatment program while incarcerated; and (5) the transcript from the probable cause hearing, which included the expert’s testimony.

Based on this record, the district court held that Morrow was a sexually violent predator. The court ordered that he be committed to the custody of the director of DHS until such time as his mental abnormality had so changed that he was safe to be at large. Morrow filed this appeal.

III. Does Chapter 229A Violate Mor-roto’s Right to Equal Protection?

A. General principles governing our review. This court reviews constitutional claims de novo. See Callender v. Skiles, 591 N.W.2d 182, 184 (Iowa 1999). Statutes are cloaked with a strong presumption of constitutionality and, thus, a party challenging a statute “carries a heavy burden” of rebutting this presumption. Glowacki v. State Bd. of Medical Exam’rs, 501 N.W.2d 539, 541 (Iowa 1993). “ ‘A person challenging a statute must negate every reasonable basis upon which the statute could be upheld as constitutional.’ ” Id. (quoting Schroeder Oil Co. v. Iowa State Dep’t of Revenue & Fin., 458 N.W.2d 602, 603 (Iowa 1990)).

B. Principles of equal protection. The United States and Iowa Constitutions guarantee the equal protection of the law to all persons. See U.S. Const, amend. XIV, § 1; Iowa Const, art. I, § 6. “We apply the same analysis in considering the state equal protection claim as we do in considering the federal equal protection claim.” State v. Ceaser, 585 N.W.2d 192, 196 (Iowa 1998).

The Equal Protection Clause essentially requires that similarly-situated persons be treated alike. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313, 320 (1985); Ceaser, 585 N.W.2d at 196. If people are not similarly situated, their dissimilar treatment does not violate equal protection. See Bruns v. State, 503 N.W.2d 607, 610 (Iowa 1993); Hack v. Auger, 228 N.W.2d 42, 43 (Iowa 1975). To meet constitutional standards, it is sufficient if all members of the same class be treated the same. See Hack, 228 N.W.2d at 43.

The classification itself must, however, be reasonable. See id. The following discussion summarizes the appropriate analysis in determining the reasonableness of a classification:

A classification is reasonable if it is “based upon some apparent difference in situation or circumstances of the subjects placed within one class or the other which establishes the necessity or propriety of distinction between them.” A classification “does not deny equal protection simply because in practice it results in some inequality; practical problems of government permit rough accommodations.... ”

State v. Mann, 602 N.W.2d 785, 792 (Iowa 1999) (citations omitted). “The legislature is given wide discretion in defining the limits of classes when a statute involves classification of persons or things.” State v. Hall, 227 N.W.2d 192, 194 (Iowa 1975).

C. Application of law to facts. We turn now to a determination of whether Morrow is similarly situated to others who are not subject to the commitment procedures of chapter 229A. Morrow claims that he is treated differently than other “violent offenders with ... antisocial personality disorder[s] who have served their prison sentences and are due for release.” We conclude, however, that sexually violent predators are not similarly situated to other violent offenders.

In order to be committed under chapter 229A, a person must (1) be convicted of or charged with a sexually violent offense, (2) suffer from a mental abnormality, and (3) be likely to engage in predatory acts constituting sexually violent offenses if not confined. See Iowa Code § 229A.2(8). Although Morrow argues that the “same findings could be made upon any other group of violent offenders,” this conclusion is not true. If the same findings could be made, the person would fall within the class of a sexually violent predator and be subject to chapter 229A. It is true that other prisoners may have committed violent offenses, may suffer from a mental disorder, and may be likely to repeat their prior offenses, but such prisoners are still dissimilar because their offenses are not sexual in nature. This difference in the nature of the prisoners’ offenses is an adequate basis upon which to conclude that sexually violent predators and other violent offenders are not similarly situated and may be treated differently without violating the Equal Protection Clause. See In re Hay, 263 Kan. 822, 953 P.2d 666, 675 (1998) (rejecting equal protection challenge to similar statute, holding that “there exist clear distinctions between this class [of sexually violent predators] and other classes which are not similarly treated”); In re Blodgett, 510 N.W.2d 910, 917 (Minn.1994) (rejecting equal protection challenge to similar statute, noting that there are “genuine and substantial distinctions” between the sexual predator and other criminal recidivist types, such as murderers and arsonists).

In addition, we think the classification of sexually violent predators is reasonable. The legislature, in enacting the Sexually Violent Predator Act, found that such persons were “a small but extremely dangerous group” who were not amenable “to existing mental illness treatment modalities.” Iowa Code § 229A.1. The general assembly also found “that sexually violent predators’ likelihood of engaging in repeat acts of predatory sexual violence is high and that the existing involuntary commitment procedure under chapter 229 is inadequate.” Id. The legislature is free to single out sexually violent predators from other violent offenders. The particularly devastating effects of sexual crimes on victims, and the offenders’ need for specialized treatment provide a rational basis for the classification. See State v. Post, 197 Wis.2d 279, 541 N.W.2d 115, 130 (1995) (upholding similar statute against equal protection challenge, noting “the heightened level of dangerousness and the unique treatment needs of sexually violent persons” as distinctions justifying the classification).

The fact that the Act does not address potentially similar problems with other violent offenders does not detract from the reasonableness of the current classification. See In re Hay, 953 P.2d at 675; see also Martin v. Reinstein, 195 Ariz. 293, 987 P.2d 779, 798 (Ct.App.1999) (upholding similar statute against equal protection challenge, finding it reasonable to treat sexually violent predators differently than persons suffering from other mental disorders committed under existing involuntary commitment procedures); see generally Minnesota ex rel. Pearson v. Probate Ct., 309 U.S. 270, 275, 60 S.Ct. 523, 526, 84 L.Ed. 744, 750 (1940) (stating that “the legislature is free to recognize degrees of harm, and it may confine restrictions to those classes of cases where the need is deemed to be clearest”). The discussion of the Kansas Supreme Court is particularly enlightening:

The legislature has broad constitutional authority to adopt statutory programs to confine and treat people who might be dangerous to themselves or others and who suffer from some mental ailment, whether a mental abnormality, a personality disorder, or a mental illness as statutorily defined. The legislature, however, is under no duty to act to the fullest extent of its authority.
The Act focuses on the narrow problem of mental abnormality and violent predatory sex crimes. The legislative history shows the target group was a small number of habitual sex offenders, who, because of their psychological makeup, pose an immediate danger to the public.
Equal protection of the law does not require the State to choose between attacking every aspect of public danger or not attacking any part of the danger at all.

In re Hay, 953 P.2d at 675.

Similarly here, the Iowa legislature focused on the risks of recidivism by sexually violent predators. The legislature was not required to enact a law that encompassed the risks of recidivism by all violent criminals. Consequently, the classification of sexually violent predators is reasonable and does not violate the Equal Protection Clause.

IV. Does Chapter 229A Violate Mor-roiv’s Right to Due Process'?

“Due process requires fundamental fairness in a judicial proceeding.” In re R.B., 493 N.W.2d 897, 898 (Iowa App.1992). Morrow claims that it was impossible for him to have a fair trial before a jury in view of the evidence that he had committed sexually violent offenses in the past. He argues that a jury would find him to be a sexually violent predator “on the basis of [his] bad character.”

“Litigants cannot challenge the constitutionality of a statute unless they can show they have been injured by it.” Norland v. Grinnell Mut. Reinsurance Co., 578 N.W.2d 239, 241 (Iowa 1998). Here, the State withdrew its jury demand and the respondent’s trial was to the court. Accordingly, the respondent cannot show that he was injured by the provision in the statute allowing a jury trial at the State’s request. No evidence of prior bad acts or prior convictions was placed before a jury and, therefore, the respondent was not subjected to the asserted risk that the jury would misuse such evidence.

Moreover, Morrow’s due process claim cannot be saved on the ground that the possibility of a jury trial caused him to agree to a trial on a stipulated record in exchange for the State’s waiver of a jury. At trial, the respondent’s attorney stated: “After reviewing the record in total, including the great number of documents that [the State] provided from the Department of Corrections, I concluded that even though the standard is proof beyond a reasonable doubt, no sufficient defense could be raised to the facts, and that is another reason we’re stipulating here today.” Morrow also acknowledges in his brief that one of the reasons he agreed to a trial on stipulated facts was to protect his privacy.

It is also clear the respondent has never contended the risk that evidence of prior bad acts and convictions would be misused existed in a bench trial. As the respondent acknowledges in his brief, “A judge ... is experienced in weighing the effect of prior acts on the present elements at issue.”

In view of the procedural history of this case, we conclude that the respondent has not been injured by the statute’s provision for a jury trial at the State’s request. Therefore, he cannot challenge the constitutionality of chapter 229A on this basis.

AFFIRMED.

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

      . Although the respondent conceded in the district court that his equal protection challenge was subject to review under a rational basis standard, on appeal he claims that the statute impinges on a fundamental right and therefore must be reviewed under a standard of strict scrutiny. The respondent’s equal protection claim was argued to the district court and ruled upon by the district court on the basis of the rational relationship test. To now apply a strict scrutiny standard would require the State, after the record has been made in the district court, to show a compelling interest to justify the classification. It would be contrary to our principles of error preservation to consider for the first time on appeal the respondent's argument that his claim should be considered under a different standard. Therefore, we hold that the respondent’s claim for a heightened standard of review was not preserved. See Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257, 269-70 (1993) (refusing to determine whether strict scrutiny standard applied to review of involuntary commitment statute because the respondent had argued in the lower courts that the statutory scheme was subject to a rational basis review). Consequently, we apply a rational basis test.