author: HECHT, Justice.

text:
    STATE of Iowa, Appellant, v. James Howard BENTLEY, Appellee.
    No. 06-1000.
    Supreme Court of Iowa.
    Sept. 28, 2007.
    Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, David C. Thompson, Benton County Attorney, Harold Denton, Linn County Attorney, and Nicholas Maybanks, Assistant Linn County Attorney, for appellant.

      Thomas J. O’Flaherty of O’Flaherty Law Firm, North Liberty, for appellee.
    Alice A. Phillips of American Prosecutors Research Institute, Alexandria, Virginia, for amicus curiae.
   HECHT, Justice.

The issue presented in this interlocutory appeal is whether the videotaped statements of J.G., a ten-year-old child, are admissible under the Confrontation Clause of the United States Constitution at James Bentley’s trial on sexual abuse charges. Because we conclude J.G.’s statements are testimonial, J.G. is unavailable to testify at trial, and Bentley had no opportunity for cross-examination, we affirm the district court’s ruling that the videotaped statements are inadmissible under the Confrontation Clause.

I.Factual Background.

On November 16, 2004, J.G. was interviewed by Roseanne Matuszek, a counselor at St. Luke’s Child Protection Center (CPC). The interview was arranged by Officer Ann Deutmeyer, an investigator employed by the Cedar Rapids Police Department, and Pam Holtz, a representative of the Iowa Department of Human Services (DHS). Officer Deutmeyer and Holtz watched and listened to the interview through an “observation window.” During the videotaped interview, J.G. made numerous statements alleging James Bentley sexually abused her. Bentley’s brother murdered J.G. on or around March 24, 2005. Other facts relevant to the disposition of this appeal will be presented below in our analysis of the legal issue presented.

II. Procedural Background.

Two days after J.G.’s interview at the CPC, the Linn County Attorney charged Bentley with the crime of sexual abuse in the second degree, in violation of Iowa Code sections 709.1 and 709.3 (2003). Soon afterward, the Benton County Attorney filed similar charges against Bentley.

Bentley filed in both cases a motion for a preliminary determination of the admissibility of J.G.’s videotaped interview under the Confrontation Clause of the United States Constitution. The district court ruled admission of the videotape would not violate the Confrontation Clause. After we denied Bentley’s application for review of that ruling, he filed a motion in limine seeking to prevent the videotape’s admission at trial.

After a hearing on the motion in limine, the district court held admission of the videotape would violate Bentley’s constitutional right to confront a witness against him. The State filed an application for discretionary review, which we granted. We stayed the district court proceedings pending resolution of this matter.

III. Standard of Review.

We review de novo claims involving the Confrontation Clause. State v. Hallum, 606 N.W.2d 351, 354 (Iowa 2000).

IV. Analysis.

The Confrontation Clause of the United States Constitution guarantees to Bentley the right “to be confronted with the witnesses against him.” U.S. Const, amend. VI. In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held tape-recorded statements police officers elicited during a custodial interrogation of the defendant’s wife were inadmissible at the defendant’s trial because they were testimonial, the declarant was unavailable at trial, and the defendant had no prior opportunity for cross-examination. 541 U.S. at 38-40, 68-69, 124 S.Ct. at 1357, 1374, 158 L.Ed.2d at 184-85, 203. The Court reasoned that the text and history of the Sixth Amendment support two inferences: (1) “[T]he principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused”; and (2) “[T]he Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Id. at 50, 53-54, 124 S.Ct. at 1363, 1365, 158 L.Ed.2d at 192, 194. Because the parties agree that J.G. is, tragically, “unavailable,” and Bentley had no prior opportunity to cross-examine J.G., the admissibility of J.G.’s videotaped statements depends on whether they are “testimonial” if offered against Bentley in this case. If the statements are testimonial, they are inadmissible against Bentley at trial; but if they are nontestimonial, the Confrontation Clause does not prevent their admission.

Prior to Crawford, the government bore the burden of proving constitutional admissibility in response to a Confrontation Clause challenge. United States v. Arnold, 486 F.3d 177, 213 (6th Cir.2007) (Nelson Moore, J., dissenting) (citing Idaho v. Wright, 497 U.S. 805, 816, 110 S.Ct. 3139, 3147, 111 L.Ed.2d 638, 652 (1990); Ohio v. Roberts, 448 U.S. 56, 74-75, 100 S.Ct. 2531, 2543, 65 L.Ed.2d 597, 613 (1980)). It does not appear that Crawford altered this allocation of the burden of proof. Id. Accordingly, we conclude the government bears the burden of proving by a preponderance of the evidence that J.G.’s statements are nontestimonial.

The Court’s view expressed in Crawford that the Framers intended the Confrontation Clause to preclude admission of “testimonial” statements made by unavailable witnesses who have not been subjected to cross-examination was based, in part, on the Confrontation Clause’s express reference to “witnesses against the accused”— that is, to those who “bear testimony” against the accused, whether in court or out of court. Crawford, 541 U.S. at 51, 124 S.Ct. at 1364, 158 L.Ed.2d at 192 (internal quotation marks and citations omitted). One who “bears testimony” makes “[a] solemn declaration or affirmation ... for the purpose of establishing or proving some fact.” Id. (internal quotation marks and citations omitted).

The Court identified in Crawford “[v]arious formulations of th[e] core class of ‘testimonial’ statements” that the Confrontation Clause was intended to address: “ex parte in-court testimony or its functional equivalent,” “extrajudicial statements ... contained in formalized testimonial materials,” and “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statements] would be available for use at a later trial.” Id. at 51-52, 124 S.Ct. at 1364, 158 L.Ed.2d at 193 (internal quotation marks and citations omitted). Although the Court did not offer a comprehensive definition of “testimonial statement,” its opinion noted that even if a “narrow standard” is used to determine whether statements are testimonial, “[statements taken by police officers in the course of interrogations,” such as the declarant’s statements in Crawford, are testimonial. Id. at 52, 124 S.Ct. at 1864, 158 L.Ed.2d at 193.

As the court noted in Crawford, “one can imagine various definitions of interrogation.” 541 U.S. at 53 n. 4, 124 S.Ct. at 1365 n. 4, 158 L.Ed.2d at 194 n. 4. Using the term in its colloquial sense, as the court did in Crawford, see id., we conclude the interview of J.G. was essentially a substitute for police interrogation at the station house. Representatives of the police department and DHS were present and participated in the interview. J.G. was informed at the outset of the conversation that a police officer was present and listening. The questions posed were calculated to elicit from J.G. factual details of the past criminal acts that Bentley had allegedly perpetrated against her. When the interview was concluded, the officer left the CPC with a videotaped copy of the interview which she considered evidence to be used against Bentley. The recorded interview conducted with the participation of a police officer is in our view a “modern practice!] with closest kinship to the abuses at which the Confrontation Clause was directed.” Crawford, 541 U.S. at 68, 124 S.Ct. at 1374, 158 L.Ed.2d at 203.

Upon our de novo review, we conclude the government has not met its burden of proving the recorded statements of J.G. identifying Bentley as her abuser and describing his acts of alleged sexual abuse are nontestimonial. The extensive involvement of a police officer in the interview leads us to conclude J.G.’s statements were in effect “taken by [a] police officer!] in the course of [an] interrogation!].” Crawford, 541 U.S. at 52, 124 S.Ct. at 1364, 158 L.Ed.2d at 193.

A “community task force steering committee,” which included some law enforcement personnel, organized the CPC. The record discloses a close, ongoing relationship has persisted between the CPC and representatives of local law enforcement agencies. The CPC acknowledges that one of its objectives is to provide centralized access to services, including law enforcement services. The police department’s standard operating procedure calls for the referral of child victims of sexual abuse to the CPC for “forensic interviews.” Law enforcement officials make continuing education workshops available to CPC employees, and Matuszek has attended such seminars.

Holtz and Officer Deutmeyer arranged the appointment for J.G.’s interview at the CPC. Immediately before and after J.G.’s interview, a “multi-disciplinary team,” which included Officer Deutmeyer, met to discuss the case. Such meetings of CPC team members routinely include discussions of whether crimes have been committed against the child-interviewee and the identities of the perpetrators of those crimes.

Officer Deutmeyer confirmed that CPC interviews with children generally focus “on the alleged crime.” In fact, the interview of J.G. in this case illustrates the typical CPC interview protocol. Matuszek briefly engaged in casual “rapport building” as the interview began, but the subject of her questions and J.G.’s answers soon shifted and focused primarily on the specific acts of sexual abuse Bentley allegedly perpetrated against J.G.

The participants in the interview have acknowledged that the interview served an investigative function for the State. Ma-tuszek’s written “patient interview report” described the interview as an “evidentiary interview.” Officer Deutmeyer accurately described Matuszek’s conversation with J.G. as a “forensic interview” and an “investigative tool.” J.G. was informed of the involvement of the police department on three separate occasions during the interview. Matuszek opened the interview by telling J.G. a police officer and a DHS representative were listening on the other side of the observation window. When J.G. subsequently indicated she wanted to discontinue the interview, Matuszek specifically implored J.G. to continue because “it’s just really important the police know about everything that happened.” At a later point in the interview, Matuszek encouraged J.G. to provide additional details because the police were “probably going to want to know just a little bit more” about the arrangement of Bentley’s apartment, where some of the alleged acts of sexual abuse occurred.

Officer Deutmeyer’s involvement in the interview was not limited to mere observation. Toward the end of the interview, Matuszek told J.G. she was going next door to talk with the police officer and a representative of DHS about whether she “forgot to ask ... some questions.” When she returned to the interview room, Matuszek asked J.G. additional specific questions about Bentley’s conduct. According to Officer Deutmeyer, questions posed to the interviewee after such mid-interview consultations between CPC staff and representatives of law enforcement are typically directed toward obtaining more “specific information because the child has given [the police] enough to believe that a crime has been committed,” but the police need more evidence to substantiate the allegations and decide what course to pursue in future investigations. After J.G.’s interview, the CPC followed its protocol by giving a copy of the tape to Officer Deutmeyer. The tape of the interview was marked as “evidence” and placed in the police department’s evidence storage room. These factual circumstances make it objectively apparent that “the purpose of the [recorded interview] was to nail down the truth about past criminal events.” Davis v. Washington, 547 U.S. -, -, 126 S.Ct. 2266, 2278, 165 L.Ed.2d 224, 242 (2006).

Indicia of “formality” surrounding J.G.’s statements reinforce our determination that J.G.’s statements were the product of a police interrogation. J.G. spoke in a calm environment responding to a series of structured questions posed by Matuszek. The statements constituted a historical account of past events, deliberately provided in response to questioning regarding past events. The statements were made in an environment designed and equipped to facilitate forensic interviews calculated to collect evidence against those suspected of abusing children. As we have already noted, the interview room included an observation window that enabled police officers to watch and participate in the interview, and video equipment that was used to make a record of the interview for use by law enforcement officers.

•The State asserts J.G.’s statements are nontestimonial because a reasonable child of J.G.’s chronological age (10) and functional age (7) would not have understood her statements would be used to prosecute the defendant. We conclude, however, an analysis of the purpose of the statements from the declarant’s perspective is unnecessary under the circumstances presented here. J.G.’s testimonial statements lie at the very core of the definition of “testimonial,” and fall within the category of ex parte examinations against which the Confrontation Clause was directed.

We also reject the State’s assertion that Bentley’s right to confrontation in this case should yield to the interests of J.G. and the State because the Confrontation Clause is not inflexibly applied. The United States Supreme Court has concluded that “[a] State’s interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant’s right to face his or her accusers in court.” Maryland v. Craig, 497 U.S. 836, 853, 110 S.Ct. 3157, 3167, 111 L.Ed.2d 666, 683 (1990). In Craig, the Court held the Confrontation Clause does not “categorically prohibitG” testimony via closed circuit television by a child victim of sexual abuse if in-court testimony would be traumatic for the child. Id. at 840, 110 S.Ct. at 3160, 111 L.Ed.2d at 675. Although Craig does stand for the proposition that the circumstances of the confrontation may be modified to protect children, it does not support the State’s assertion that the right of confrontation may be dispensed with altogether if the declarant is a child. In Craig, the child victim testified under oath during trial and was subjected to cross-examination through closed-circuit television. The circumstances in the case now before the court are quite different, as J.G. is deceased and therefore unavailable to testify against Bentley, who has no opportunity to subject J.G.’s recorded statements to cross-examination. Bentley’s right to confront a witness against him need not yield to the State’s interest under the circumstances of this case.

Our conclusion that J.G.’s statements are testimonial is consistent with the decisions of other courts. L.J.K. v. Alabama, 942 So.2d 854, 861 (Ala.2005) (statements of four-year-old and six-year-old children to a state-employed child abuse investigator were testimonial); T.P. v. State, 911 So.2d 1117, 1123 (Ala.Crim.App.2004) (child’s statements to a social worker in the presence of a police investigator were testimonial); People v. Sisavath, 118 Cal.App.4th 1396, 13 Cal.Rptr.3d 753, 757-58 (2004) (child’s statement to interview specialist at a private victim assessment center, made in the presence of the prosecuting attorney and district attorney’s investigator, was testimonial); People v. Sharp, 155 P.3d 577, 579-82 (Colo.Ct.App.2006) (five-year-old’s videotaped interview with private forensic interviewer was testimonial where a police detective arranged the interview and interviewer asked questions requested by the detective); In re Rolandis G., 352 Ill.App.3d 776, 288 Ill.Dec. 58, 817 N.E.2d 183, 188 (2004) (statements to private child abuse investigator while police officer watched through one-way glass were testimonial); State v. Henderson, 160 P.3d 776, 789-90 (Kan.2007) (statements made by child sexual abuse victim to social worker and police detective were testimonial); State v. Snowden, 385 Md. 64, 867 A.2d 314, 325 (2005) (child sex abuse victims’ statements during interview with DHS sexual abuse investigator arranged by police detective were testimonial); Flores v. State, 121 Nev. 706, 120 P.3d 1170, 1178-79 (2005) (statements made by a child describing child abuse to police investigator and child protective services worker were testimonial); State v. Blue, 717 N.W.2d 558, 564 (N.D.2006) (statements to private forensic interviewer working “in concert with or as agent of’ the police were testimonial); State v. Mack, 337 Or. 586, 101 P.3d 349, 352-53 (2004) (statements made by three-year-old during interviews with DHS caseworker were testimonial, where police officers arranged the interviews as a substitute for police interrogation, were present during the interviews, and videotaped them); State v. Pitt, 209 Or.App. 270, 147 P.3d 940, 944-45 (2006) (statements made to private forensic child interviewer while police officer videotaped interview through one-way glass were testimonial), opinion adhered to on reconsideration at 212 Or.App. 523, 159 P.3d 329 (2007); In re S.R., 920 A.2d 1262, 1264 (Pa.Super.Ct.2007) (child sex abuse victim’s statements made to a forensic interview specialist while police officer watched through one-way glass were testimonial).

We credit the State’s assertion that the CPC performs very important and laudable services in furtherance of the protection of children. The child-friendly CPC facility includes a waiting room and play area with toys, games, books, a fish aquarium, and a television. The interview room includes drawing supplies and is equipped to maximize children’s comfort. It is beyond dispute that information gathered from J.G. in such a child-friendly, safe environment could have been very useful in the treatment of her well-documented psychological conditions. The work of the CPC and the team of professionals who took J.G.’s statement is not impugned by our characterization of J.G.’s statements as “testimonial.” The actors were doing important work intended to investigate past alleged crimes and prevent future crimes. Although one of the significant purposes of the interrogation was surely to protect and advance the treatment of J.G., as we have discussed above, the extensive involvement of the police in the interview rendered J.G.’s statements testimonial. Therefore, the district court correctly ruled the admission of the statements would violate Bentley’s rights under the Confrontation Clause under the circumstances of this case.

V. Conclusion.

Bentley’s right to confront witnesses against him is an essential constitutional right, and we must be vigilant in guarding against its erosion. On this point, we share the opinion of Chief Justice Marshall, who wrote:

I know of no principle in the preservation of which all are more concerned. I know none, by undermining which, life, liberty and property, might be more endangered. It is therefore incumbent on courts to be watchful of every inroad on a principle so important.

See Crawford, 541 U.S. at 73, 124 S.Ct. at 1377, 158 L.Ed.2d at 206 (Rehnquist, J., concurring) (quoting United States v. Burr, 25 F.Cas. 187, 193 (C.C.Va.1807) (No. 14,694)). Under the circumstances of this case, the district court correctly concluded J.G. was a witness who bore testimony against Bentley in the recorded interview. Because Bentley has no opportunity to cross-examine J.G., the admission of her testimonial statements would violate Bentley’s right to confront witnesses against him. We therefore affirm the district court’s ruling.

AFFIRMED.

      . Matuszek holds a Master’s Degree in counseling and has interviewed nearly 3,000 children during her fourteen years of service at the CPC.

      . By agreement of the parties, the hearing and ruling on the motion in limine pertained to both the Linn and Benton County cases.

      . We leave for another day the decision whether statements made by children during interrogations conducted by forensic interviewers without police participation are testimonial. As in Crawford, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 and Davis, 547 U.S. -, 126 S.Ct. 2266, 165 L.Ed.2d 224, our holding today makes it unnecessary to decide whether and when statements made to someone other than law enforcement personnel are “testimonial.” Courts addressing this question have reached disparate conclusions. Compare United States v. Bordeaux, 400 F.3d 548, 556 (8th Cir.2005) (child sex abuse victim’s videotaped statements made to a forensic interviewer were testimonial); Rangel v. State, 199 S.W.3d 523, 533-36 (Tex.App.2006) (child’s statements made two months after alleged abuse to child protective services investigator were testimonial); State v. Buda, 389 N.J.Super. 241, 912 A.2d 735, 745-46 (2006) (child’s statements to government-employed social worker were testimonial); State v. Hopkins, 137 Wash.App. 441, 154 P.3d 250, 257-58 (2007) (same), with People v. Geno, 261 Mich.App. 624, 683 N.W.2d 687, 692 (2004) (statement to director of children’s assessment center was nontestimonial because the interrogator was not "a government employee”); State v. Bobadilla, 709 N.W.2d 243, 254-56 (Minn.2006) (child’s statements to protective service worker during risk assessment interview were nontestimonial); State v. Sheppard, 164 Ohio App.3d 372, 842 N.E.2d 561, 566-67 (2005) (statement to private clinical counselor in mental health interview was nontestimonial); Commonwealth v. Allshouse, 924 A.2d 1215, 1222-24 (Pa.Super.Ct.2007) (child abuse victim’s statements to county youth services caseworker at the child’s home were nontestimonial).


source: Caselaw Access Project

author: TERNUS, Chief Justice.

license: Public Domain

text:
    IOWA ASSOCIATION OF SCHOOL BOARDS, Appellant, v. IOWA DEPARTMENT OF EDUCATION and The Iowa Auditor of State, Appellees.
    No. 05-1255.
    Supreme Court of Iowa.
    Sept. 28, 2007.

      Dennis W. Johnson and Cristina F. Kuhn of Dorsey & Whitney LLP, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, and Christie J. Scase, Assistant Attorney General, for appellees.
   TERNUS, Chief Justice.

School districts in Iowa want to use a special property tax levy to pay for a portion of their transportation fuel costs. The appellant, Iowa Association of School Boards, sought separate declaratory rulings from the appellees, Iowa Department of Education and the Iowa Auditor of State, that would authorize member school districts to expend property taxes levied under Iowa Code section 298.4 (2003) on fuel purchased under a “fleet services program” administered through the association. Both agencies ruled school districts could not use monies raised by the special property tax levy permitted by section 298.4 for this purpose. The agencies’ declaratory orders were affirmed by the district court on judicial review. After considering the arguments of the parties and the relevant legal authorities, we agree with the district court and affirm its decision.

I. Background Facts and Proceedings.

The facts in this case are undisputed. Every school district in Iowa is required to provide transportation to students living more than a specified distance from the student’s designated school. Iowa Code § 285.1(1). The annual cost of fuel to provide this transportation is a major expense for school districts. While the expense of fuel poses a challenge in itself, budgeting for this expense in a time of fluctuating fuel prices is even more challenging.

School districts operate on a fiscal year of July 1 through June 30. See id. § 24.3. Local property taxes and state aid are the two primary funding sources for the districts. See generally id. ch. 257. In order to allow sufficient time to set property tax rates for the following year, districts must certify a budget for the upcoming fiscal year by April 15. See id. §§ 24.17, .20. After a budget is certified and the time for amendment has expired, the district’s authorized expenditures may not exceed the budgeted amount, as supplemented by any unspent balance from the preceding year. Id. § 257.7. In addition, the authorized tax rates and levies computed on the basis of the certified budget are final for the ensuing fiscal year*. Id. § 24.20.

Because budgets are finalized so far in advance, school districts face a constant uncertainty over the impact an increase in fuel prices will have on their operating budgets, The Iowa Association of School Boards, a nonprofit organization representing the interests of its public-school district members, devised a way to assist school districts in reducing and managing unpredictable and rising fuel costs. Through a program administered by the association, Iowa Joint Utilities Management Program, Inc. (IJUMP), participating members are offered the opportunity to purchase fuel at a set price throughout the fiscal year. Under IJUMP’s “fleet services program,” each participating district enters into a twelve-month, renewable participant agreement that designates IJUMP as the district’s contracting agent for the purchase and delivery of vehicle fuel. The district is then permitted to purchase fuel throughout the fiscal year at a guaranteed price that is established on January 31 of the preceding fiscal year.

In addition to promising to pay for gasoline purchased pursuant to the agreement, the district agrees to pay an annual “risk management fee” determined on the basis of the price per gallon and the total number of gallons that the district “elects to insure” during the term of the contract. IJUMP uses the management fee collected from the participating district to pay any difference between the guaranteed fuel price and the actual price of fuel delivered to the district. At the end of the fiscal year, any surplus in the district’s account, i.e., any remaining management fee paid by the district, may be rolled over to the next fiscal year. Alternatively, the district may choose to receive a payment based on the number of gallons of fuel purchased during the year, minus program administration costs. If the management fee is insufficient to cover the difference between the guaranteed price and the actual cost of the fuel used by the district, IJUMP will bill the district for the shortfall or will charge a higher fee in the following year to cover the deficit.

The present dispute arises from participating districts’ desire to pay the management fee required by. the fleet services program through a special “district management levy” authorized by Iowa Code section 298.4. Section 298.4 allows a district to levy a property tax in addition to the property taxes for the general school fund permitted by chapter 257. The tax collected through the district management levy must be placed in the district’s management levy fund and can be expended only for purposes specified in section 298.4.

In January 2005, the association, on behalf of its members, filed petitions for declaratory order with the Iowa Department of Education and the Iowa Auditor of State seeking declaratory rulings that the school districts had the authority to use district management levy funds to pay the management fee required for participation in IJUMP’s fleet services program. The association contended this expenditure was authorized by section 298.4(3), which allows payments from the district management levy fund “[t]o pay the costs of insurance agreements under section 296.7.”

In identical declaratory orders, the department and auditor ruled that the fleet services program was not “insurance” as that term is used in section 296.7. The agencies stated that “[t]he essence of an insurance agreement is that one party pays consideration to a second party in return for the second party assuming some specified risk for the first party.” They noted that, under the fleet services program, “no risk is assumed by IJUMP. The risk remains with the participating districts at all times.” The agencies concluded the fleet services program was “akin to a budget-billing plan where the certainty of the price of fuel is set for a twelve-month period, but increases are still eventually absorbed solely by the district.” Based on this analysis, the agencies ruled the management fee for the fleet services program did not represent the cost of an insurance agreement, and accordingly, “a district may not fund any part of its participation from the district’s management levy funds.”

The association filed a petition for judicial review, asking the court to reverse the agencies’ decisions. Initially, the district court determined the Department of Education had authority to interpret chapters 296 and 298. Therefore, granting appropriate deference to the department’s interpretation of the pertinent statutes, the district court reviewed the department’s decision under section 17A19(1O)(0. This statute states, in part, that the court “shall reverse, modify, or grant other appropriate relief from agency action” if the agency action is “[biased upon an irrational, illogical, or wholly unjustifiable interpretation of a provision of law.” Iowa Code § 17A.19(10)©. After analyzing the language of section 296.7(1), the court agreed with the agencies that the participant agreement for the fleet services program was not an “insurance agreement” as contemplated by that statute. Therefore, the court held, “the agencies logically, rationally and justifiably applied [the governing statutes] to the facts of this case.”

The association has appealed the district court’s decision, raising two issues. First, the association contends the department’s interpretation of section 298.4(3) and section 296.7(1) is not entitled to deference. Secondly, the association argues school districts have authority to use district management levy funds to pay the management fee required for participation in the IJUMP fleet services program. We address each issue separately.

II. Standard of Review.

A. General Principles. We review district court decisions on judicial review of agency action under the standards of Iowa Code' chapter 17A, the Administrative Procedure Act. Mosher v. Dep’t of Inspections & Appeals, 671 N.W.2d 501, 508 (Iowa 2003). Section 17A.19(10) governs review of the agency action itself. Applying the standards of section 17A.19(10), we determine whether our conclusions are the same as those of the district court. Id.

In this case, the association’s challenge is based on the agencies’ alleged erroneous interpretation of the controlling statutes. Consequently, one of two possible standards for review applies. Under section 17A.19(10), a court must reverse agency action when “substantial rights of the person seeking judicial review have been prejudiced because the agency action is any of the following”:

c. Based upon an erroneous interpretation of a provision of law whose interpretation has not clearly been vested by a provision of law in the discretion of the agency.
1. Based upon an irrational, illogical, or wholly unjustifiable interpretation of a provision of law whose interpretation has clearly been vested by a provision of law in the discretion of the agency.

Iowa Code § 17A.19(10)(c), (l). As a comparison of these provisions reveals, the appropriate standard of review depends on whether the legislature has clearly vested the interpretation of the statute at issue in the discretion of the agency.

When an agency has not clearly been vested with the discretion to interpret the pertinent statute, the court gives no deference to the agency’s interpretation of the statute. Id. § 17A.19(11)(5). Under these circumstances, the court on judicial review simply determines whether the agency’s interpretation was “erroneous.” Id. § 17A.19(10)(c); see also Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004). When the agency has been granted discretion to interpret the statute at issue, the court must “give appropriate deference” to the agency’s interpretation. Iowa Code § 17A.19(ll)(c). In this situation, the agency’s interpretation of the statute will be followed unless it is “irrational, illogical, or wholly unjustifiable.” Id. § 17A.19(10)(1); see also ABC Disposal Sys., Inc. v. Dep’t of Natural Res., 681 N.W.2d 596, 602 (Iowa 2004).

In deciding whether the interpretation of a statute has clearly been vested by a provision of law in the agency’s, discretion, we give no deference to the agency’s view of this matter. Iowa Code § 17A.19(ll)(a). To inform our decision, we consider “ ‘the precise language of the statute, its context, the purpose of the statute, and the practical considerations involved.’” Mosher, 671 N.W.2d at 509 (quoting Arthur E. Bonfield, Amendments to Iowa Administrative Procedure Act, Report on Selected Provisions to Iowa State Bar Association and Iowa State Government 63 (1998) [hereinafter Bon-field] ). Based on this review and using our “ ‘own independent judgment,’ ” we decide whether

“[w]e have a firm conviction ... that the legislature actually intended (or would have intended had it thought about the question) to delegate to the agency interpretive power with the binding force of law over the elaboration of the provision in question.”

Id. (quoting Bonfield at 63).

B. Discussion. Iowa Code section 256.1 establishes the Department of Education “to act in a policymaking and advisory capacity and to exercise general supervision over the state system of education including ... [pjublic elementary and secondary schools.” The director of the department has numerous specified duties. See Iowa Code § 256.9. Section 256.9(16) provides that the director “shall ... [interpret the school laws and rules relating to the school laws.” Id. § 256.9(16). It is undeniable that this statute clearly vests the director with discretion to interpret “school laws.” Although the association acknowledges the director’s duty and authority to interpret school laws, it argues sections 298.4 and 296.7 are not school laws. According to the association, these provisions are taxing statutes. We. disagree.

Section 298.4 authorizes school districts to levy a tax on all taxable property in the district, requires that the proceeds of the levy be deposited in a district management levy fund, and specifies five purposes for which this fund can be expended. Section 296.7 authorizes school districts to enter into specified insurance agreements and to levy taxes under section 298.4 to pay for such agreements. While sections 298.4 and 296.7 certainly deal with taxation, we think their primary purpose is to delineate and control school spending. The principal focus of these statutes is not on the assessment and collection of the tax, but on the expenditure of the tax revenues. Moreover, both provisions are located in Title VII, “Education and Cultural Affairs” subtitle 6, “School Districts,” rather than in Title X, “Financial Resources,” which encompasses various taxing laws'. Chapter 256, in which the director is charged with the interpretation of “school laws,” is also in Title VII governing education. Thus, the context of sections 298.4 and 296.7 supports the district court’s conclusion the department, acting through its director, has been vested with discretion to interpret these provisions.

In addition to the purpose and context of these laws, the practical considerations involved also support our conclusion. Because school financing is so complex, there are practical reasons the legislature would want all laws affecting school finances subject to the interpretive authority of the agency charged with oversight of those finances — the Department of Education. In an analogous situation, we held the Iowa Utilities Board had clearly been vested with discretion to interpret laws governing telecommunications companies based on the board’s “broad authority ... to regulate the rates and services of public utilities.” AT & T Commc’ns of the Midwest, Inc. v. Iowa Utils. Bd., 687 N.W.2d 554, 561 (Iowa 2004). Similarly, in the present case, the department has broad authority over school budgeting and financing. See generally Iowa Code §§ 257.30 (establishing a school budget review committee in the department, chaired by the director), .31 (describing extensive duties of school budget review committee, including review of each district’s proposed and certified budgets). Consequently, it would be odd, indeed, to exclude from the director’s duty to interpret school laws the provisions governing school districts’ establishment and use of the district management levy fund simply because the source of this fund is tax revenues.

For the foregoing reasons, we are convinced the legislature intended to vest the department’s director with the discretion to interpret sections 298.4 and 296.7. Accordingly, we give appropriate deference to the agency’s interpretation of these statutes by reviewing its interpretation under the standard set forth in section 17A.19(10)(Z). Under that standard, we will not reverse the agency’s interpretation unless it is “irrational, illogical, or wholly unjustifiable.” Iowa Code § 17A.19(10)(Z).

III. Use of District Management Levy Fund For Fleet Services Program Management Fees.

A. Relevant Statutes. As previously noted, a school district that establishes a district management levy fund under section 298.4 may use monies from this fund only for specified purposes. One such purpose is “the costs of insurance agreements under section 296.7.” Id. § 298.4(3). Section 296.7 provides in pertinent part:

1. A school district ... may ... enter into insurance agreements obligating the school district ... to make payments beyond its current budget year for one or more of the following mechanisms to protect the school district ... from tort liability, loss of property, environmental hazards, or any other risk associated with the operation of the school district or corporation:
a. To procure or provide for a policy of insurance.
b. To provide a self-insurance program.
c. To establish and maintain a local government risk pool.

Id. § 296.7(1).

B. Parties’ Contentions. The department interpreted the term “insurance agreements” in a traditional sense, holding an agreement must at least transfer the risk of loss from one party to another to fall within the statute. The association criticizes this interpretation, arguing section 296.7 allows a school district to use the district management levy fund for any mechanism that protects the district from any risk associated with the operation of the school district. It argues the legislature’s authorization of self-insurance programs and local government risk pools indicates section 296.7 “is not limited to only traditional insurance agreements or insurance policies.”

The department rejects the association’s broad interpretation of the statute for several reasons. First, it asserts, the plain language of section 296.7 limits the included “mechanisms” to “insurance agreements” in the form of “a policy of insurance,” “a self-insurance program,” or “a local government risk pool,” none of which encompasses the fleet services program agreement. Second, it contends if the fund could be used for any expenditure that protects the district against any risk, there would be no limit to what expenses could be transferred out of the general budget and into the district management levy fund:

The purchase of a sprinkler system or rental of an off-site computer data backup site reduces the risk of disruption to the delivery of educational programs which could result from fire or a computer system crash. Similarly, inoculation of teachers with flu shots or hepatitis vaccine offers protection against teacher illness and protects against the potential cost and disruption to the operation of a school caused by teacher absences and the hiring of substitutes.

Finally, the department points out the limitations on taxing and spending authority contained in the basic school finance formula, see id. §§ 257.1-.4, would be readily circumvented under the association’s interpretation, thereby thwarting the legislative goal in controlling school spending: “to equalize the amount of funds available to finance the education of every child in the state regardless of where the child lives.” Exira Cmty. Sch. Dist. v. State, 512 N.W.2d 787, 793 (Iowa 1994).

C. Discussion. We focus our discussion on the core requirement of section 296.7 that, regardless of what “mechanism” a district chooses to employ (a policy of insurance, a self-insurance program, or a local government risk pool), that mechanism must be “an insurance agreement” that “protect[s] the school district ... from tort liability, loss of property, environmental hazards, or any other risk associated with the operation of the school district.” Iowa Code § 296.7(1). The department suggests this language restricts covered mechanisms to those that accomplish the traditional purpose of insurance: protection against the risk of loss. The association interprets the phrase “any risk associated with its operation” literally and broadly to mean any risk, not necessarily a risk of loss. Based on our study of the statute and relevant authorities, we are convinced the department’s interpretation of section 296.7(1) is not irrational, illogical, or wholly unjustifiable.

The goal of statutory interpretation is to ascertain legislative intent, and that intent is determined by “the words chosen by the legislature.” Auen, 679 N.W.2d at 590. Consequently, to determine whether the contract between IJUMP and the districts is an “insurance agreement” that protects the school district from a “risk associated with the operation of the school district,” we must identify what the legislature meant by “insurance” and “risk.” Because these terms are not defined in the statute, “we look to prior decisions of this court and others, similar statutes, dictionary definitions, and common usage.” Gardin v. Long Beach Mortgage Co., 661 N.W.2d 193, 197 (Iowa 2003). In addition, “we consider the' context of the provision^] at issue and interpret the provision[s] consistent with the entire statute of which [they are] a part.” State v. Kamber, 737 N.W.2d 297, 299 (Iowa 2007).

We begin with the common meaning of the word “risk.” Black’s Law Dictionary defines “risk” as “[t]he chance of injury, damage, or loss; danger or hazard.... ” Black’s Law Dictionary 1328 (7th ed.1999). The general dictionary definition is similar: “possibility of loss or injury.” Merriam-Webster’s Collegiate Dictionary 1008 (10th ed.2002). Significantly, the common meaning of this term is consistent with its usage in the context of insurance. A leading treatise on insurance law suggests that the primary attribute of insurance is “the assumption of a risk of loss and the undertaking to indemnify the insured against such loss.” 1 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 1:9, at 1-16 (1995) (emphasis added); accord 1 Eric M. Holmes & Mark S. Rhodes, Holmes’s Appleman on Insurance 2d § 1.3, at 16 (1996) (noting common-law definition of insurance describes insurer’s obligation to pay “ ‘upon the destruction, loss or injury of something in which the [insured] has an interest’ ” (emphasis added) (quoting Mass. Gen. Laws ch. 175, § 2 (1935)) [hereinafter “Appleman on Insurance 2d”]; 43 Am. Jur. 2d Insurance § 2, at 49 (2003) (“Insurance, therefore, is a means of distributing the risks of loss.” (Emphasis added.)). Another notable treatise in this field states: “In the insurance contract, the risk of an actual loss is distributed (socialized) among a large group of persons exposed to a comparable risk of loss.” 1 Appleman on Insurance 2d § 1.3, at 11 (emphasis added). “Loss” means “destruction,” “a person or thing or an amount that is lost,” or “the amount of an insured’s financial detriment by death or damage that the insurer becomes liable for.” Merriam-Webster’s Collegiate Dictionary 687. Finally, we note the other contingencies against which the school district may protect itself by using an insurance agreement — tort liability, loss of property, and environmental hazards — all contain an element of injury, loss, or damage. Based on these considerations, we think it is rational, logical, and wholly justifiable to interpret section 296.7(1) as permitting only insurance agreements that pay for mechanisms protecting the school district against a risk of loss.

The participant agreement for the fleet services program does not protect the district against a risk of loss. As the department concluded, the fleet services program is a budget-billing plan that allows the district to defer payment of fuel costs in excess of the guaranteed price to the next fiscal year. Under the program, there is no loss incurred by the district, and the district remains liable for the full cost of its fuel purchases. The fleet services program does not provide loss protection.

The association argues the possibility of high fuel costs is not the only risk “insured” by the fleet services program:

School districts fund their fuel expenditures from their general fund. Therefore, unanticipated increases in fuel expenditures during the fiscal year may at times force school districts to reduce educational programs or services for the students. IJUMP is intended to protect school districts from this risk of disruption in the delivery of educational programs and services.

Although avoidance of a disruption in the delivery of educational programs and services may be the goal of districts participating in IJUMP’s fleet services program, there is no provision in the contract between IJUMP and the districts that even remotely addresses the coverage of losses caused by a realization of the risk of such a disruption. The department’s refusal to interpret section 296.7(1) as authorizing expenditures from the district management levy fund for any mechanism that assists a district in merely avoiding a loss was not irrational, illogical, or wholly unjustifiable. Not only is the department’s interpretation dictated by the language of the statute, such a dramatic expansion of a district’s ability to transfer expenses out of its general formula funding would undermine the limitations on spending imposed by the school finance formula.

We also reject the association’s argument that the legislature intended to give districts wide latitude in spending the district management levy funds because section 296.7(1) authorizes the use of noninsu-rance mechanisms — self-insurance plans and local government risk pools. See Iowa Code § 296.7(5) (stating a self-insurance program and a local government risk pool are “not insurance” and not subject to regulation under Iowa’s insurance laws). Section 298.4(3) only authorizes expenditures for “insurance agreements authorized by section 296.7,” and section 296.7 only authorizes school districts to enter into specifically described “insurance agreements.” (Emphasis added.) We think the legislature’s use of the term “insurance agreements” in both statutes demonstrates its intent that the self-insurance programs and risk pools permitted by section 296.7(1) be alternatives to traditional insurance and not arrangements with a wholly different purpose.

A review of pertinent authorities reveals that self-insurance and risk pools, while not “insurance,” are recognized alternatives to insurance that are designed to accomplish the same purpose as the purchase of an insurance policy: protection against risks of loss. As one treatise explains:

In self-insurance the company, governmental entity or individual chooses not to purchase insurance but rather retains the risk of loss. In order to protect against losses, the self-insured will often set aside funds on a regular basis to provide its own pool from which losses will be paid. This can be analogized to the situation where a party purchasing traditional insurance pays premiums to the insurer on a regular basis. However, in a self-insurance situation there is no shifting of the risk from the individual person or company to a larger group.

1 Appleman on Insurance 2d § 1.3, at 10 (emphasis added); accord St. John’s Reg’l Health Ctr. v. Am. Cas. Co., 980 F.2d 1222, 1225 (8th Cir.1992) (stating in a self-insurance program, “the risk of loss ” is retained by the person who bears the risk (emphasis added)); State v. Continental Cas. Co., 126 Idaho 178, 879 P.2d 1111, 1116 (1994) (“Self-insurance occurs when an entity, rather than purchasing insurance to cover potential losses, elects to pay off its losses as they arise, or to set aside fixed sums into a reserve account to pay off intermittent losses.” (Emphasis added.)); Cordova v. Wolfel, 120 N.M. 557, 903 P.2d 1390, 1392 (1995) (stating “self-insurance is a process of risk retention whereby an entity ‘set[s] aside assets to meet foreseeable future losses ’ ” (emphasis added) (quoting Robert E. Keeton & Alan I. Wid-iss, Insurance Law: A Guide to Fundamental Principles, Legal Doctrines and Commercial Practices § 1.3, at 14 (1988))); Physicians Ins. Co. v. Grandview Hosp. & Med. Ctr., 44 Ohio App.3d 157, 542 N.E.2d 706, 707 (1988) (“Self-insurance is the retention of the risk of loss by the one upon whom it is directly imposed by law or contract.” (Emphasis added.)); Black’s Law Dictionary 807 (defining “self-insurance” as “[a] plan under which a business sets aside money to cover any loss ” (emphasis added)). Thus, self-insurance, like an insurance policy, contemplates protection against a risk of loss.

Local government risk pools commonly have the same purpose. In City of West Branch v. Miller, 546 N.W.2d 598 (Iowa 1996), this court discussed a risk pool that had been formed by county governments. The pool self-funded certain risks and purchased private insurance for other risks. City of West Branch, 546 N.W.2d at 599. We observed that, with respect to the self-funded coverages in the risk pool, “the pool pays the claims from the pool of money collected from pool members. In effect, pool members share and pay the claims.” Id. at 603; accord Dobrowolska ex rel. Dobrowolska v. Wall, 138 N.C.App. 1, 530 S.E.2d 590, 595 (2000) (holding that in order to constitute a risk pool, the risks of two or more municipalities must be put in one pool for payment of all claims of all entities). Thus, the purpose of risk pooling is to spread the risk of loss. Consequently, local government risk pools are simply another way for districts to protect against a risk of loss in lieu of purchasing a policy of insurance.

We conclude the inclusion of self-insurance and risk pools in section 296.7(1) does not indicate a legislative intent to broaden permissible expenditures from the district management levy fund beyond those associated with protecting against risks of loss traditionally covered by insurance policies. Given the commonly understood meaning of risk in relation to insurance, self-insurance, and risk pooling, the department was not irrational, illogical, or wholly unjustified in refusing to expand the definition of “risk” to include an arrangement that does not involve an actual loss.

IV. Summary.

Because the department has clearly been vested with discretion to interpret sections 298.4 and 296.7, we give deference to the department’s interpretation of these statutes and will reverse that interpretation only if irrational, illogical, or wholly unjustifiable. We conclude the department’s interpretation of these statutes does not meet this standard for reversal. Accordingly, we affirm the declaratory rulings of the department and the auditor that school districts may not use district management levy funds to pay the management fees required for participation in IJUMP’s fleet services program.

AFFIRMED.

      . The "participant agreement” between the individual school districts and IJUMP refers to the fuel-purchase arrangement as "Fleet Services,” "the Fleet Services Program” or "IJUMP-Fleet Services.” In contrast to the contractual language, the association refers to the fleet services program in its pleadings and briefs as a "fuel risk management program.” We, like the agencies whose decisions are challenged in this appeal, choose to use the contractual language.

      . As noted above, the auditor’s declaratory order was identical to the department’s declaratory order. Therefore, if either agency has clearly been granted discretion to interpret the pertinent statutes, we must give deference to the agency interpretation and review the agency order under the "irrational, illogical, or wholly unjustifiable” standard. Because we determine the department was 'given such discretion, we need not consider whether the auditor had any discretion with respect to this matter.


author: /s/Helen M. Meyer Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Joshua Lee KAMMERER, a Minnesota Attorney, Registration No. 295061.
    No. A07-1856.
    Supreme Court of Minnesota.
    Oct. 2, 2007.
   ORDER

Based upon the application of the Director of the Office of Lawyers Professional Responsibility, pursuant to Rule 12(c)(1), Rules on Lawyers Professional Responsibility, and upon evidence that respondent Joshua Lee Kammerer cannot be found in the state or served personally with the petition for disciplinary action,

IT IS HEREBY ORDERED that respondent Joshua Lee Kammerer is suspended from the practice of law in Minnesota. Within one year from the date of this order, respondent may move for vacation of the order for suspension and for leave to answer the disciplinary petition. Respondent is advised that if he fails to appear in this matter within one year from the date this order is filed, the allegations in the petition for disciplinary action shall be deemed admitted.

BY THE COURT:

/s/Helen M. Meyer Associate Justice


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Michael L. KIEFER, a Minnesota Attorney, Registration No. 5558X.
    No. A07-1806.
    Supreme Court of Minnesota.
    Oct. 2, 2007.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Michael L. Kiefer committed professional misconduct warranting public discipline, namely, misappropriation of client funds, failure to cooperate with the Director’s investigation, making false statements to the Director, and failure to maintain trust account books and records, in violation of Rules 1.15(a), 8.4(c), 8.1(a) and (b), 8.4(c), 1.15(c)(3) and (h), and Appendix 1 of the Minnesota Rules of Professional Conduct and Rule 25, Rules on Lawyers Professional Responsibility (RLPR).

Respondent admits the allegations of the petition and has entered into a stipulation with the Director by which respondent waives his rights under Rule 14, RLPR. The parties jointly recommend that the appropriate discipline is an indefinite suspension with no right to apply for reinstatement for at least five years. The parties further recommend that the court not waive the reinstatement hearing provided for in Rule 18, RLPR, and that respondent be reinstated only to permanent retired status.

The court has independently reviewed the file and, in view of the facts that the amounts misappropriated were small, that respondent made full restitution of the misappropriated sums, and that respondent’s clients experienced no adverse consequences as a result, approves the jointly recommended discipline.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that effective upon the date of entry of this order, respondent Michael L. Kiefer is indefinitely suspended from the practice of law with no right to petition for reinstatement for a minimum of five years from the date of entry of this order. The reinstatement hearing provided for in Rule 18, RLPR, is not waived. Reinstatement is further conditioned upon successful completion of the professional responsibility portion of the state bar examination and satisfaction of continuing legal education requirements pursuant to Rule 18(e), RLPR. Respondent may be reinstated only to permanent retired status. Respondent shall pay costs of $900 and shall comply with Rule 26, RLPR (requiring notice of suspension to clients, opposing counsel, and tribunals). BY THE COURT:

/s/Helen M. Meyer Associate Justice


author: MEYER, Justice.

text:
    STATE of Minnesota, Respondent, v. Johnny Jerome CLARK, Appellant.
    No. A06-1464.
    Supreme Court of Minnesota.
    Oct. 4, 2007.

      Rochelle R. Winn, Office of the State Public Defender, Minneapolis, MN, for Appellant.
    Lori Swanson, Attorney General, St. Paul, MN, James C. Backstrom, Dakota County Attorney, Shirley A. Leko, Asst. Dakota County Attorney, Hastings, MN, for Respondent.
   OPINION

MEYER, Justice.

A Dakota County jury found appellant Johnny Jerome Clark guilty of first-degree premeditated murder and first-degree domestic abuse murder for the shooting death of his long-time girlfriend, P.M. The court convicted Clark of first-degree domestic abuse murder and sentenced him to life in prison. At trial, Clark admitted shooting P.M., but the defense argued that the murder was not premeditated. In this direct appeal, Clark claims that the evidence is insufficient to convict him of first-degree domestic abuse murder and first-degree premeditated murder.

On May 14, 2005, at 2:05 a.m. Clark entered the Hennepin County jail, approached an officer, and said, “Put me in prison. I hurt my baby.” After Clark explained that he had hurt his girlfriend, P.M., who lived in Burnsville, the officer relayed the information to the Burnsville police, who went to P.M.’s apartment. The police entered the secure building and found P.M.’s apartment door unlocked. After entering the apartment, they found P.M. lying in a pool of blood on the bathroom floor, unconscious and not breathing. There was an open cell phone lying on the floor near her hand. P.M. was transported to an ambulance, where she was pronounced dead.

The cause of P.M.’s death was fatal gunshot wounds to the head and the back. The gunshot wound to the back was a contact wound, meaning that the muzzle of the gun was held in very close proximity to the surface of her body. The bullet entered the right side of P.M.’s back, passed through both lungs, the aorta, and two chambers of the heart, and exited at the side of the left breast. The medical examiner testified that the exit wound on P.M.’s body and damage to the bathroom floor were consistent with shooting P.M. in the back while she was lying on the bathroom floor. The bullet that caused the head wound came from a gun that was at least two feet away when it was fired.

Clark and P.M., though not married, had been together as a couple for about 16 years. They had three children together, L.C., S.B.C., and D.C., who at the time of Clark’s trial were 16, 14, and 13 years of age, respectively. At the end of 2004, the relationship between P.M. and Clark became strained, and P.M. wanted Clark to move out of the apartment they shared. In April 2005, Clark discovered that P.M. was pursuing a romantic relationship with N.A., the cousin of P.M.’s good friend, A.P.

N.A. and P.M. communicated frequently by phone and e-mail. P.M. went to New York to visit N.A. over Valentine’s Day 2005. Sometime in April of 2005, Clark left a message for N.A., which N.A. played for his cousin A.P. A.P. testified that on the message it sounded as if Clark was choking P.M.

Clark claimed that he was not angry about the relationship between P.M. and N.A., because he believed that P.M. and N.A. were just friends. However, L.C. testified that sometime before the murder she was watching a movie with Clark about a woman cheating on her husband. L.C. asked Clark why the husband would kill the man instead of his wife, and Clark replied, “So you think I should kill your mom?” When L.C. asked why, Clark said it was because P.M. was cheating on him.

On April 28, 2005, P.M. called the police to the family’s Burnsville apartment and told them that she and Clark were having an argument over some property in the apartment and she wanted him to leave. Clark claimed that the fight was over a laptop computer that he had purchased for P.M. and wanted to take with him when he moved out. D.C. testified that Clark and P.M. were arguing in the master bedroom before P.M. and S.B.C. went to the main office of the apartment complex to call the police. D.C. testified that before the police arrived, Clark drove P.M.’s truck over her cell phone, which Clark testified N.A. had given her. The responding police officer testified that he suspected no physical violence and that he gave Clark a ride to a bus stop. P.M. and her children went to the home of A.P. and spent the night, something they had never done before. According to A.P., this altercation between P.M. and Clark occurred the day after A.P. heard the phone message that Clark had left for N.A.

A.P. testified that when P.M. and the children came to her home on April 28, P.M. was very distraught and emotional, saying she wanted to leave the state. P.M. told A.P. that she and Clark were fighting and that Clark had taken out a gun. P.M. had a cut on her face, but claimed that she had cut herself. P.M. stayed away from the apartment for about a week, and Clark did not know where she was. P.M. had the locks changed on the apartment before she and the children moved back in. By the time P.M. and the children moved back into the apartment, Clark had moved his things out and was no longer living there. He had accessed the apartment to remove his things with a key given to him by P.M.

Clark and his cousin, S.C., grew up together and had a close relationship. S.C. also had a close relationship with P.M. and sometimes spent time with her when Clark was not around. On the night of May 13, 2005, P.M. called S.C. about going out with P.M. P.M. arrived at S.C.’s home around 11 or 11:30 p.m. and made a few phone calls. P.M. talked to her sister around 11 p.m., but since it was late, they decided not to go out. P.M. left S.C.’s home sometime between 11:30 p.m. and midnight. At 11:56 that evening P.M. left a voice mail message for her sister.

Clark testified that he went to P.M.’s apartment shortly after midnight on May 14 because he and P.M. planned to get something to eat and talk. He said he entered the secure apartment building using a key he had from when he lived there and then knocked on P.M.’s apartment door. According to Clark, P.M. let him into the apartment, greeted him with a hug, and they went toward the master bedroom; she went toward the closet and he went into the bathroom. Clark asked P.M. what happened with her and N.A. P.M. told Clark that it was over and that Clark was worried about the wrong thing. Clark replied, “I’m not worried about nothing, whatever, what you do, who you f* * P.M. replied, “you don’t give a f* * ⅜, that’s why I’m f* * *ing [S.C.],” referring to Clark’s cousin. Clark testified that he then shot P.M. and fled.

Clark testified he drove back to his mother’s house and from there got a ride to a house near the Mall of America, where he met S.C. Clark told S.C. that he may have hurt P.M. badly and that he wanted to turn himself in at the jail. S.C. said that Clark was crying so hard that it was difficult to understand him. S.C. drove Clark to the jail in downtown Minneapolis, Clark hugged S.C., gave S.C. Clark’s cell phone, and went inside. Later, S.C. found a duffel bag, some papers, and a gun that did not belong to him in the back seat of his car. S.C. threw the bag and the papers in a dumpster and put the gun in the trunk of his car. After being contacted by the police, S.C. gave them the gun and Clark’s phone and admitted to throwing the duffel bag and papers in a dumpster.

A black duffel bag retrieved from the dumpster had P.M.’s address on it and contained four Polaroid photos of P.M., metal handcuffs that matched keys found on Clark when he was arrested, 100 feet of rope, a bottle of acidic toilet bowl cleaner, two sealed plastic containers of battery acid with labels that read “Poison Causes Severe Burns,” a new pair of heavy-duty chemical-resistant latex gloves, a safety kit that included a mask and goggles, a box of 9mm Luger cartridges with five missing, a cell phone bill in the name of Johnny Clark, a print-out of e-mail messages in which N.A. tells P.M. that he loves her, dated April 22 and 23, 2005, a cell phone bill with N.A.’s name and P.M.’s address, the back side of an empty CD case, a black marker, and a bottle of liquor.

The defense theory was that Clark did not premeditate the murder, but that he went into a rage and shot P.M. upon hearing that she was sleeping with S.C., Clark’s cousin. Clark claimed that he often carried a gun for protection. Clark stated that he went to P.M.’s apartment to talk to her. He testified that he did not bring the duffel bag to her apartment, but rather took it from his mother’s house after he killed P.M. because he thought it contained drugs and he did not want the police to find it if they came to his mother’s house. Clark also claimed that the duffel bag simply contained items he had packed while moving out of the apartment he shared with P.M.

For the purpose of proving a past pattern of domestic abuse at trial, the State introduced the following evidence. P.M.’s sister testified that when P.M. was pregnant with her oldest child, approximately 15 years before the murder, P.M. had been talking to Clark on the back porch of her mother’s home when she came into the home crying and holding her ear and said that Clark had hit her. P.M.’s sister also testified that when P.M.’s daughters both were babies, she spent the night at P.M. and Clark’s apartment and woke up in the night to the sound of Clark trying to wake P.M. and then hitting her. P.M.’s sister did not see what occurred, but she heard a “smack” and heard P.M. sniffling, and she saw P.M. go into the bathroom to get tissue. P.M. then returned to the bedroom and said, “Stop.” L.C., Clark’s and P.M.’s 16-year-old child, testified that P.M. and Clark argued a lot and that during the last two years that the family lived together, Clark slept in the master bedroom while P.M. slept in the living room. D.C., Clark’s and P.M.’s 13-year-old child, testified that there was a time “this last year” when he was sleeping and he woke up to sounds. He saw Clark kicking P.M., who was on the floor in the hallway. P.M. later got dressed and went to work. In its closing, the State also argued that the jury could infer an incident of domestic abuse from the fact that P.M. called the police to the apartment after she and Clark had been arguing in the bedroom and that she then left the apartment and had the locks changed.

Clark claims the evidence is insufficient to convict him of first-degree premeditated murder and first-degree domestic abuse murder.

When reviewing the sufficiency of evidence, we view the evidence in the light most favorable to the State and will assume that the jury believed the State’s witnesses and disbelieved contrary evidence. The question on review is whether the facts in the record and the legitimate inferences drawn from them would permit the jury to reasonably conclude that the defendant was guilty beyond a reasonable doubt of the offense of which he was convicted. * * * [T]he jury is in the best position to weigh the credibility of evidence and thus determines which witnesses to believe and how much weight to give to their testimony.

State v. Moore, 481 N.W.2d 355, 360 (Minn.1992) (internal citations omitted).

I.

We turn first to Clark’s claim that the evidence was insufficient to convict him of domestic abuse murder. Clark specifically claims that the State failed to prove beyond a reasonable doubt the existence of a past pattern of domestic abuse. Minnesota Statutes § 609.185(a)(6) (2006) provides that whoever “causes the death of a human being while committing domestic abuse, when the perpetrator has engaged in a past pattern of domestic abuse upon the victim or upon another family or household member and the death occurs under circumstances manifesting an extreme indifference to human life” is guilty of first-degree murder. Domestic abuse is defined as an act that constitutes first-, second-, third-, or fifth-degree assault, domestic assault, first- through fourth-degree criminal sexual conduct, or terroristic threats, and “is committed against the victim who is a family or household member as defined in section 518B.01, subdivision 2, paragraph (b).” Minn.Stat. § 609.185(c) (2006). “Family or household members” include persons “who are presently residing together or who have resided together in the past; ⅜ * * persons who have a child in common * * *; and * * * persons involved in a significant romantic or sexual relationship.” Minn.Stat. § 518B.01, subd. 2(b)(4)-(6) (2006).

The state has the burden of proving a past pattern of domestic abuse beyond a reasonable doubt, but it need not prove each act constituting that pattern beyond a reasonable doubt. * * * The statute does not require proof of a pattern of domestic abuse convictions, or specify a minimum number of incidents which must be proven in order to find a pattern. However, a lone act of domestic abuse cannot constitute a pattern.
In order to determine whether a reasonable jury could have found a past pattern of domestic abuse, it is necessary to carefully examine the evidence presented regarding the abuse and the nature of appellant and victim’s relationship as a whole.

State v. Sanchez-Diaz, 683 N.W.2d 824, 832 (Minn.2004) (internal citations and quotation marks omitted).

The domestic abuse murder statute does not define “past pattern,” nor does it dictate a time frame within which the acts that constitute the pattern must occur. See Minn.Stat. § 609.185(a)(6) (2006). We have noted that “a ‘pattern’ must involve some number of events which bear sufficient relationship to establish a similarity or principle around which they are organized.” State v. Cross, 577 N.W.2d 721, 727 n. 3 (Minn.1998). In the context of domestic abuse, a pattern “suggests a regular way of acting by committing acts of domestic abuse.” State v. Robinson, 539 N.W.2d 231, 237 (Minn.1995). We concluded in Robinson that the past-pattern-of-domestic-abuse element involved both a central organizing principle, the existence of a domestic relationship, and distinguishing characteristics, the involvement of the same participants and the same types of crimes. Id. at 238. We noted also that domestic abuse crimes characteristically involve controlling behaviors along with jealousy and possessiveness. Id. at 238 n. 8. We have declined to add a specific temporal limitation as to when the separate acts of domestic abuse must have occurred to constitute a pattern, but we have held that “the events must be sufficiently proximate in time to constitute a ‘pattern.’ ” Cross, 577 N.W.2d at 727 n. 3.

In Sanchez-Diaz, the appellant was convicted of first-degree domestic abuse murder for stabbing his live-in girlfriend with whom he had been in a relationship for about two years. 683 N.W.2d at 826-27. In determining whether the evidence of a past pattern of domestic abuse was sufficient, we relied on the following incidents: the appellant admitted, and multiple family members testified, that appellant had choked the victim sometime after March of 2001; the appellant admitted that he had slapped the victim on two or three occasions before the night of the murder; and. the appellant admitted he slapped the victim on the night of the murder. Id. at 832-33. In concluding that the evidence of a past pattern was sufficient, we placed significant weight on appellant’s statement that the victim was afraid of him. Id. at 833. We also emphasized the fact that when asked whether neighbors would tell the authorities about his hitting the victim, he responded, “everybody knew how we lived.” Id. at 832-33. This response “ma[de] it clear that the abuse appellant admitted was part of the regular way in which he related to the victim.” Id. at 833. In affirming appellant’s conviction for first-degree domestic abuse murder, we stated:

We recognize that the facts of this case do not demonstrate a past pattern of abuse as clearly as the facts of our past decisions. However, the choking and multiple slapping incidents, considered together with the evidence of the pervasive nature of the abuse in the relationship, are adequate to demonstrate a past pattern of abuse.

Id. (internal citations omitted).

In this case, the State relies on five separate incidents to prove a past pattern of domestic abuse: (1) the testimony of P.M.’s sister that while P.M. was pregnant with her first child Clark hit her (“the hitting incident”); (2) the testimony of P.M.’s sister that when L.C. and S.B.C. were babies, Clark “smacked” P.M. (“the smacking incident”); (3) D.C.’s testimony that Clark kicked P.M. sometime in the year before her murder (“the kicking incident”); (4) A.P.’s testimony that she heard a phone message in which it sounded like Clark was choking P.M. (“the phone message”); and (5) A.P.’s testimony that on the day P.M. called the police to her apartment, P.M. had a cut on her face and told A.P. that Clark had taken out a gun when Clark and P.M. were arguing (“the gun incident”).

Clark concedes that D.C.’s testimony regarding the kicking incident may be sufficient to prove one underlying act of domestic abuse. But he argues that P.M.’s sister’s testimony regarding the smacking incident is too speculative to support a finding of domestic abuse. He also argues that P.M.’s sister’s testimony regarding the hitting incident is insufficient to support a finding of domestic abuse, because she did not witness the incident or testify that P.M. related any facts about the incident to her.

We have not always required that witnesses see an incident of domestic abuse for their testimony to support a pattern of domestic abuse. See Robinson, 539 N.W.2d at 234 (noting that the State proved one instance of domestic abuse through the testimony of the victim’s children that they heard the appellant and the victim fighting and they could hear crashing and slamming against the wall). In this case, Clark and P.M. were alone in a room, and the witness clearly heard a “smack,” saw P.M. go into the bathroom for tissues, heard her sniffling, and then heard her say, “Stop.” On these facts, we conclude that the jury could reasonably have inferred that Clark “smacked” P.M. when they were alone together and that this smacking incident constitutes an underlying incident of domestic abuse. The same inference of domestic abuse may be drawn from the hitting incident, because P.M.’s sister testified that P.M. came into her mother’s home from the back porch crying and holding her ear and saying that Clark had hit her.

The State argues that the phone message permits a finding of an underlying incident of domestic abuse. P.M.’s good friend, A.P., testified that sometime in April of 2005 Clark left a recorded phone message for N.A., the man with whom P.M. was having a relationship. A.P. listened to the message and testified that Clark said “this is Johnny, [P.M.’s] baby daddy * * * and I know you and [P.M.] have a relationship and I know that * * * she’s a good girl, and I wish you guys the best. And I didn’t treat her the best but, you know, I wish you guys the best.” A.P. testified that at the end of the message Clark didn’t hang up the phone and “[i]t sounded like there was a dispute in the back, as if he attacked [P.M.], * * * like he snatched her up like he’d choked her * * A.P. also indicated that it sounded like P.M. wanted to say something. When A.P. asked P.M. about the message, P.M. said that Clark was screaming and crying, but that he did not touch her. On these facts, we cannot conclude that the phone message incident adequately establishes an underlying incident of domestic abuse.

Lastly, the State claims that A.P.’s account of the gun incident is sufficient to establish an underlying incident of domestic abuse. According to A.P., the day after she heard the phone message P.M. came to A.P.’s home in a distraught state. P.M. told A.P. that she and Clark were arguing and he took out a gun. P.M. then stayed away from the apartment for about a week, and Clark did not know where she was staying. P.M. had the locks changed on the apartment.

The question is whether these facts and the legitimate inferences drawn from them would permit a jury to reasonably conclude that Clark committed an act of domestic abuse. While there is no direct evidence that Clark specifically threatened P.M. with the gun, we conclude that the jury could reasonably infer that Clark intended to frighten P.M. when he took out a gun during their argument on April 28, 2005, and therefore we conclude that the gun incident would constitute domestic abuse under either the assault or terroristic threats statutes.

We now turn to the question of whether the two incidents of domestic abuse that occurred 13-15 years before the murder and the two incidents of domestic abuse that occurred in the year before the murder may together establish, beyond a reasonable doubt, a past pattern of domestic abuse. While we have declined to add a specific temporal requirement to the separate acts of domestic abuse, we have held that “the events must be sufficiently proximate in time to constitute a ‘pattern.’” Cross, 577 N.W.2d at 727 n. 3. We have also held that a pattern “suggests a regular way of acting by committing acts of domestic abuse.” Robinson, 539 N.W.2d at 237. In other words, some incidents are too distant in time from each other to constitute a pattern or a regular way of acting.

Clark and his victim had been domestic partners and had resided together for 16 years. There is competent evidence of two incidents of domestic abuse in the early years of the relationship. After a period of living together for approximately 13 years, there is evidence of two more incidents of domestic abuse. We conclude that the acts from early in the relationship may not be considered part of a pattern of domestic abuse because those acts are too remote in time to be considered part of a “regular way of acting” for Clark. Because two of the incidents of domestic abuse occurred 13-15 years before the two incidents that occurred in the year before the murder, we conclude that the earlier incidents are not sufficiently proximate in time to the later incidents to establish a past pattern of domestic abuse.

We are therefore left to consider whether the two most recent incidents are sufficient to support a pattern of domestic abuse. While D.C.’s testimony that he saw Clark kicking P.M. is direct evidence of an incident of domestic abuse, A.P.’s testimony that P.M. told her that Clark took out a gun while they were arguing is circumstantial evidence of an incident of domestic abuse. Thus, in order to affirm Clark’s conviction for domestic abuse murder, we would have to conclude that direct evidence of one incident of domestic abuse and circumstantial evidence of a second incident of domestic abuse are sufficient to prove beyond a reasonable doubt a past pattern of domestic abuse.

The record in Sanchez-Diaz contained direct evidence of at least three incidents of domestic abuse in the two years before the victim’s death. 683 N.W.2d at 832. In addition, the defendant admitted that the victim was afraid of him and that “everybody knew how [they] lived.” Id. at 832-33. In Sanchez-Diaz, witnesses saw the defendant choking the victim, the defendant admitted to family members that he had hit the victim, and the defendant admitted that he had choked or slapped the victim at least three times during their three-year relationship. Id. at 832. We noted that the number of domestic abuse incidents in Sanchez-Diaz did not demonstrate a past pattern of abuse as clearly as the incidents involved in several past decisions. Id. at 833. But we thought it significant that there was other evidence that the abuse was pervasive in that the victim feared the defendant and the defendant admitted that the relationship was abusive. Id. at 832-33. There is no similar evidence in this case that ties together the kicking incident and the gun incident in a way that indicates that domestic abuse was “a regular way of acting” for Clark. Therefore, we conclude that the evidence in this case is insufficient to prove that Clark engaged in a past pattern of domestic abuse. We vacate Clark’s conviction for domestic abuse murder.

II.

We turn next to the question of whether there is sufficient evidence from which the jury could have reasonably concluded that Clark was guilty beyond a reasonable doubt of premeditated murder. To be guilty of first-degree premeditated murder, Clark must have caused P.M.’s death with premeditation and intent to effect her death or the death of another. MinmStat. § 609.185(a)(1) (2006). Premeditation is defined as “to consider, plan or prepare for, or determine to commit, the act referred to prior to its commission.” Minn.Stat. § 609.18 (2006). “Premeditation * * * requires some amount of time to pass between formation of the intent and the carrying out of the act.” Moore, 481 N.W.2d at 360. However, it “does not require proof of extensive planning or preparation to kill, nor does it require any specific period of time for deliberation.” State v. Cooper, 561 N.W.2d 175, 180 (Minn.1997).

“Because intent and premeditation are states of mind, they are generally proved circumstantially — by drawing inferences from the defendant’s words and actions in light of the totality of the circumstances.” Id. at 179.

On the basis of events before and at the time of the killing, the trier of fact will sometimes be entitled to infer that the defendant actually premeditated and deliberated his intentional killing. Three categories of evidence are important for this purpose: (1) facts about how and what the defendant did prior to the actual killing which show he was engaged in activity directed toward the killing, that is, planning activity; (2) facts about the defendant’s prior relationship and conduct with the victim from which motive may be inferred; and (3) facts about the nature of the killing from which it may be inferred that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design.

Moore, 481 N.W.2d at 361 (quoting W. LaFave & A. Scott, Handbook on Criminal Law § 73, at 564-65 (1972)). “[T]he evidence as a whole may support a finding of premeditation even if no single piece of evidence standing alone would be sufficient.” Id. In that case, “the circumstances [must] lead so directly to a finding of premeditation as to exclude, beyond a reasonable doubt, any reasonable inference other than that of guilt of premeditated murder.” Id.

Planning activity

We have recognized evidence of planning activity to include the defendant’s prior possession of the murder weapon and surreptitious approach to the victim. See, e.g., State v. Quick, 659 N.W.2d 701, 711-12 (Minn.2003) (bringing loaded rifle to estranged wife’s house, driving around the block so as not to be seen by the neighbor, and taking off shoes to walk up stairs supported inference of premeditation); State v. Voorhees, 596 N.W.2d 241, 247-48, 253 (Minn.1999) (bringing rifle to estranged wife’s place of work, parking a street away, and waiting in the dark for her to come outside supported inference of premeditation); Moore, 481 N.W.2d at 361-62 (removing shotgun from normal storage under the bed, loading it, and placing it on the shelf in the living room early-on the day of the killing showed planning).

Clark went to P.M.’s apartment late at night and brought the murder weapon with him, which is strong evidence of planning activity. In addition, after the murder, Clark left in S.C.’s car a bag containing items that could have been used to restrain and torture P.M. While Clark denied having the bag at P.M.’s apartment, the jury could have reasonably inferred that Clark did have the bag, lending farther support to the inference that Clark planned to harm P.M. when he went to her apartment.

Motive

Evidence of motive “includes prior threats by the defendant, plans or desires of the defendant that would have been advanced by the victim’s death, and prior conduct by the victim known to have angered the defendant.” Quick, 659 N.W.2d at 710; see, e.g., id. at 711 (concluding the fact that the victim and defendant were in the process of divorcing and that the victim had developed a close relationship with another man, which upset the defendant, supported inference of premeditation); State v. Lodermeier, 539 N.W.2d 396, 398 (Minn.1995) (evidence that defendant’s relationship with the victim had deteriorated, that defendant was angry with the victim, and that defendant had argued with the victim the night before the killing supported a determination of premeditation); State v. Shepherd, 477 N.W.2d 512, 515 (Minn.1991) (noting that jury could have reasonably credited evidence of defendant’s previous statements about wanting to kill the victim).

There is ample evidence that Clark and P.M. had a long-term relationship that, in the months before the murder, had begun to deteriorate. Clark knew that P.M. was pursuing a relationship with N.A., and an e-mail from N.A. telling P.M. that he loved her was in the duffel bag that Clark was carrying the night of the murder. Before the murder Clark had asked his daughter whether he should kill P.M. because she was cheating on him. The jury could have reasonably inferred from these facts that Clark premeditated P.M.’s murder because he was angry about the end of their relationship and about P.M.’s relationship with N.A.

Nature of the killing

Evidence in this category includes the manner of the killing, “such as evidence that the wounds were deliberately placed at vital areas of the body.” Quick, 659 N.W.2d at 711; see, e.g., Lodermeier, 539 N.W.2d at 398 (concluding that where two of the three shots inflicted fatal wounds and both fatal wounds resulted from the gun having been fired at close range, the facts supported an inference of premeditation); Cooper, 561 N.W.2d at 179 (concluding that the jury could infer premeditation from the fact that multiple shots were fired, with the fatal shot coming while the victim was down).

Clark shot P.M. once in the head and once in the back, both shots inflicting fatal wounds. The evidence indicated that Clark shot P.M. in the back after she was already lying on the floor. From the evidence of deliberately placed gunshot wounds and the evidence that Clark shot P.M. while she was lying on the floor, the jury could reasonably infer that Clark premeditated the murder of P.M. In sum, the nature of the killing, the planning activity, and evidence of a motive to kill support the jury’s conclusion that Clark was guilty of first-degree premeditated murder.

When a defendant’s conduct constitutes more than one offense, he may be convicted and sentenced for only one of those offenses. Minn.Stat. § 609.035, subd. 1 (2006). The jury found Clark guilty of both first-degree domestic abuse murder and first-degree premeditated murder, and the court convicted and sentenced him for the domestic abuse murder. Because we vacate Clark’s conviction for domestic abuse murder, we remand for conviction and sentencing on the first-degree premeditated murder verdict. See State v. LaTourelle, 343 N.W.2d 277, 284 (Minn.1984) (“If the adjudicated conviction is later vacated * * *, one of the remaining unadjudicated convictions can then be formally adjudicated and sentence imposed, with credit * * * given for time already served on the vacated sentence.”).

Affirmed in part, reversed in part, and remanded.

      . The middle child will be referred to as S.B.C. to avoid confusion with Clark’s cousin S.C.

      . For an. act to constitute “domestic abuse” under the assault statutes or the domestic assault statute, the defendant must, at a minimum, "(1) commit[ ] an act with intent to cause fear in another of immediate bodily harm or death; or (2) intentionally inflict[ ] or attempt[ ] to inflict bodily harm upon another.” Minn.Stat. §§ 609.224, subd. 1, 609.2242, subd. 1 (2006).

      . “Whoever threatens, directly or indirectly, to commit any crime of violence with purpose to terrorize another * * * or in a reckless disregard of the risk of causing such terror” is guilty of terroristic threats. Minn.Stat. § 609.713, subd. 1 (2006).

      . " 'Direct evidence’ is '[ejvidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption.' * * * ‘Circumstantial evidence' is defined as '[e]vidence based on inference and not on personal knowledge or observation’ and ‘[a]ll evidence that is not given by eyewitness testimony.’ ” Bernhardt v. State, 684 N.W.2d 465, 477 n. 11 (quoting Black's Law Dictionary 595-96 (8th ed.2004)).


text:
    In re Petition for DISCIPLINARY ACTION AGAINST Sungtaek CHO, a Minnesota Attorney, Registration No. 338461.
    No. A07-1591.
    Supreme Court of Minnesota.
    Oct. 5, 2007.
   ORDER

Based upon the application of the Director of the Office of Lawyers Professional Responsibility, pursuant to Rule 12(c)(1), Rules on Lawyers Professional Responsibility, and upon evidence that respondent Sungtaek Cho cannot be found in the state or served personally with the petition for disciplinary action,

IT IS HEREBY ORDERED that respondent Sungtaek Cho is suspended from the practice of law in Minnesota. Within one year from the date of this order, respondent may move for vacation of the order for suspension and for leave to answer the disciplinary petition. Respondent is advised that if he fails to appear in this matter within one year from the date this order is filed, the allegations in the petition for disciplinary action shall be deemed admitted.

BY THE COURT:

/s/Helen M. Meyer Associate Justice