                IN THE SUPREME COURT OF IOWA
                              No. 09–0142

                           Filed May 13, 2011


STATE OF IOWA,

      Appellee,

vs.

DALEVONTE DAVELLE HEARN,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, Mark D.

Cleve, Judge.



      Defendant seeks further review of decision affirming district court

judgment finding defendant guilty of robbery, theft, and felony eluding.

DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT

COURT AFFIRMED.


      Mark C. Smith, State Appellate Defender, and Nan Jennisch,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant

Attorney General, Michael J. Walton, County Attorney, and Jerald L.

Feuerbach, Assistant County Attorney, for appellee.
                                    2

APPEL, Justice.

      Dalevonte Hearn was convicted after a bench trial of robbery, theft,

and felony eluding. The district court found that he aided and abetted a

carjacking in a Davenport Wal-Mart parking lot and then committed

felony eluding by attempting to escape police officers who were

responding to the scene. Hearn argues there is insufficient evidence to

link him to the robbery and theft.      He also argues that even if he

participated in the carjacking, he had withdrawn from the scene prior to

the police chase and therefore did not meet the requirements of felony

eluding. The court of appeals upheld all three convictions. We granted

further review.

      I. Background Facts and Prior Proceedings.

      Delores Morgan was parked in the Davenport Wal-Mart parking lot

on West Kimberly Road when two males approached her car, told her to

get out, took her keys, and drove off in her red 1994 Pontiac Grand Am.

Morgan called police on her cell phone. Davenport police officer Dennis

Colclasure responded to the call. As he was driving towards the crime

scene, traveling west on West Kimberly Road, he spotted a car matching

the description of the stolen car pulled over for the emergency vehicles in

the eastbound lane of West Kimberly Road.

      With his lights and sirens already activated, Officer Colclasure

made a U-turn and pointed a spotlight into the Grand Am. The Grand

Am did not pull over and turned onto Division Street, following a green

Oldsmobile. While on Division, the Grand Am passed the Oldsmobile.

When Officer Colclasure attempted to do the same, the Oldsmobile

swerved at his police car.   Officer Colclasure testified that neither the

Grand Am nor the Oldsmobile pulled over and both were traveling well

over the speed limit. When the vehicles reached a construction zone, the
                                     3

Grand Am and Oldsmobile collided.        After the crash, the Oldsmobile

started up again and Officer Colclasure pursued it. The Oldsmobile had

a flat tire and someone, who was later identified as the defendant

Dalevonte Hearn, jumped out of the car, began to run, and was

apprehended by several other police officers.       During Hearn’s arrest,

Officer James Quick suffered a laceration on his ankle. Police found the

Rock Island High School I.D. of Hearn’s brother in the Oldsmobile. The

Grand Am had crashed into the front deck of a house and police found a

pocket knife on the driver’s side floorboard.

      Detective Brandon Noonan interviewed Hearn shortly after Hearn’s

arrest.   During the interview, Hearn stated that his younger brother,

DeVon Hearn, and his cousin, Jacquez Dixon, were in the red car that

wrecked.      Hearn   denied   knowing   anything    about   the   Wal-Mart

carjacking.   Hearn also testified at trial, where he maintained that he

took no part in planning or participating in the Wal-Mart carjacking.

Hearn testified that he wanted to go see his girlfriend in Peoria, Illinois,

he had taken his mother’s car to visit family in Davenport, and he had

driven by his cousin’s house and saw his brother and cousin outside of

the house with a red two-door Monte Carlo. He testified he did not know

who was in the red Grand Am and that he began to flee the police

because of outstanding warrants for his arrest in Rock Island.

      Hearn was convicted after a bench trial of second-degree robbery

in violation of Iowa Code section 711.3 (2009), second-degree theft in

violation of Iowa Code section 714.2(2), and felony eluding in violation of

Iowa Code section 321.279(3).      Hearn’s robbery and theft convictions

were based on a finding that he aided and abetted the carjacking.
                                     4

      Hearn argues the district court lacked sufficient evidence to

convict him of the three felonies.       The court of appeals affirmed the

convictions, and we granted further review.

      II. Scope of Review.

      Sufficiency of the evidence challenges are reviewed for correction of

errors at law. State v. Hansen, 750 N.W.2d 111, 112 (Iowa 2008). “The

district court’s findings of guilt are binding on appeal if supported by

substantial evidence.     Evidence is substantial if it would convince a

rational trier of fact the defendant is guilty beyond a reasonable doubt.”

Id. (citation omitted).    To determine whether substantial evidence

supports the trial court’s verdict, we consider all the evidence and the

record in the light most favorable to the trial court’s decision. State v.

Taylor, 689 N.W.2d 116, 131 (Iowa 2004). To support the verdict, “ ‘[t]he

evidence must be such that, when considered as a whole, a reasonable

person could find guilt beyond a reasonable doubt.’ ” State v. Doss, 355

N.W.2d 874, 877 (Iowa 1984) (quoting State v. Mulder, 313 N.W.2d 885,

888 (Iowa 1981)).    We draw all legitimate inferences in support of the

verdict. Taylor, 689 N.W.2d at 131. However, “[e]vidence which merely

raises suspicion, speculation, or conjecture is insufficient.”    State v.

Casady, 491 N.W.2d 782, 787 (Iowa 1992).

      Questions regarding the proper interpretation of a statute raise

questions of law. Van Sloun v. Agans Bros., Inc., 778 N.W.2d 174, 182

(Iowa 2010).

      III. Merits.

      A. Robbery and Theft.       Hearn was convicted of second-degree

robbery and second-degree theft, based on the theory of aiding and

abetting.   The Iowa Code provides that those who aid and abet in the

commission of a public offense “shall be charged, tried and punished as
                                           5

principals.” Iowa Code § 703.1. To sustain a conviction under a theory

of aiding and abetting, “the record must contain substantial evidence the

accused assented to or lent countenance and approval to the criminal act

by either actively participating or encouraging it prior to or at the time of

its commission.” State v. Ramirez, 616 N.W.2d 587, 591–92 (Iowa 2000),

overruled on other grounds by State v. Reeves, 636 N.W.2d 22, 25–26

(Iowa 2001).     “Knowledge is essential; however, neither knowledge nor

presence at the scene of the crime is sufficient to prove aiding and

abetting.”      State v. Barnes, 204 N.W.2d 827, 828 (Iowa 1972).                     A

defendant’s participation may, however, be proven by circumstantial

evidence. 1 Doss, 355 N.W.2d at 878.

       Hearn argues the evidence is insufficient to link him to the

carjacking.     He argues the circumstantial evidence of his actions after

the crime and the fact that he saw the principals earlier that day do not

provide substantial evidence to support his conviction. The State argues

Hearn’s convictions may be sustained because of the reasons cited by the

district court: Hearn admitted to police that his brother and cousin were

in the red Grand Am; Hearn stated to police that he was with his brother

and cousin near the Wal-Mart shortly before the carjacking; Hearn had a
motive to steal the car because he wanted to go visit his girlfriend in

Peoria, Illinois, but was only able to use his mother’s car for a short time

period; Hearn was present near the red Grand Am; and Hearn’s actions

directly after the carjacking.




       1Prior to 1979, we held that, if circumstantial evidence was used to prove aiding
and abetting, the evidence had to pass the test of being consistent with the defendant’s
guilt and inconsistent with any rational hypothesis of his innocence. Doss, 355 N.W.2d
at 878. We abandoned this rule in State v. O’Connell, 275 N.W.2d 197, 204–05 (Iowa
1979), and held circumstantial evidence is as probative as direct evidence.
                                    6

      A person commits theft when the person “[t]akes possession or

control of the property of another, or property in the possession of

another, with the intent to deprive the other thereof.”        Iowa Code

§ 714.1(1). Theft is in the second degree when the property is a motor

vehicle not exceeding $10,000 in value. Id. § 714.2(2).
            A person commits robbery when, having the intent to
      commit a theft, the person does any of the following acts to
      assist or further the commission of the intended theft or the
      person’s escape from the scene thereof with or without the
      stolen property:
               1. Commits an assault upon another.
             2. Threatens another with or purposely puts another
      in fear of immediate serious injury.
            3. Threatens to commit immediately any forcible
      felony.

Id. § 711.1.

      The district court held, based on the totality of the circumstances,

the two individuals who took Morgan’s car “intended to physically

intimidate the victim into surrendering her car to them, and that they

actually succeeded in placing her in fear of immediate physical contact.”

The district court relied on evidence of Hearn’s actions before and “within

minutes after” the carjacking, as well as evidence of motive, to find Hearn
aided and abetted the robbery and theft of Morgan’s car.

      Hearn admitted to police that he had been at his cousin’s house

near the Wal-Mart prior to the theft of the car. Hearn also told police

that his cousin and brother were the individuals in the other car when it

crashed.   This testimony puts Hearn with those who committed the

carjacking prior to the incident and demonstrates Hearn’s knowledge of

who was in the Grand Am.          The district court found that Hearn’s

inconsistent trial testimony—in which Hearn claimed he had not stopped
                                    7

at his cousin’s house and did not know who was in the Grand Am—was

not credible.

      Hearn’s actions after the carjacking also provide circumstantial

evidence of his guilt. Hearn was found in proximity to the scene of the

carjacking (still on West Kimberly Road); he was in close proximity to the

stolen Grand Am (he first drove the Oldsmobile in front of the Grand Am

and then behind it); and Hearn swerved at Officer Colclasure, which the

district court found was an attempt to obstruct Officer Colclasure’s

pursuit of the Grand Am. This evidence suggests Hearn was involved in

the carjacking because he was trying to help the principal carjackers

escape the scene of the crime.     See Barnes, 204 N.W.2d at 828–29

(finding insufficient evidence of guilt where defendant did not flee the

scene of his companion’s crime and instead purchased cigarettes and

spoke with police).

      The district court also relied on circumstantial evidence of Hearn’s

motive. Hearn admitted he wanted to go to Peoria to see his girlfriend

but that his mother had only loaned him her Oldsmobile for a limited

time. The district court noted that Hearn was older than his brother and

cousin and that Hearn’s brother’s I.D. was found in the Oldsmobile.

Based on this evidence, the district court concluded that it was likely

Hearn had engineered the carjacking so that he would have a car to drive

to Peoria.

      Evidence of a defendant’s “ ‘presence, companionship, and conduct

before and after the offense is committed’ may be enough from which to

infer a defendant’s participation in the crime.”    State v. Lewis, 514

N.W.2d 63, 66 (Iowa 1994) (emphasis added) (quoting State v. Miles, 346

N.W.2d 517, 520 (Iowa 1984)).      The district court relied on Hearn’s

actions before and after the carjacking to find that he aided and abetted
                                          8

robbery and theft.         We find the circumstantial evidence provided

substantial evidence to support the verdict.

       B. Felony Eluding.

       1.     Overview of Issues Presented.         Iowa Code section 321.279

provides that the driver of a motor vehicle is guilty of felony eluding when

the driver willfully attempts to elude a marked law enforcement vehicle

driven by a uniformed officer, after a visual or audible signal to stop has

been provided, by driving in excess of twenty-five miles per hour over the

speed limit and “[t]he driver is participating in a public offense, as

defined in section 702.13, that is a felony.” 2 Iowa Code § 321.279(3)(a).

Hearn admits he was eluding a uniformed officer in a marked vehicle

after being commanded to stop by driving twenty-five miles per hour over

the speed limit, but denies that he was participating in a qualifying

public offense under Iowa Code section 702.13 at the time of the chase.

       Iowa Code section 702.13 provides that a person is participating in

a public offense until “the person has been arrested or has withdrawn

from the scene of the intended crime and has eluded pursuers, if any

there be.” Id. § 702.13. Hearn argues that the State failed to present

evidence sufficient to sustain a conviction for felony eluding for two
reasons: (1) there is insufficient evidence that Hearn participated in the

public offense of robbery or theft, and (2) even if he did participate in the

carjacking, he had withdrawn from the scene before he was chased by

police and therefore he had “eluded pursuers, if any there be.”

       We have ruled that Hearn’s conviction of robbery and theft was

supported by sufficient evidence on an aiding and abetting theory. As a


       2The statute also applies when the offense results in bodily injury to a person
other than the driver or the driver is violating Iowa Code section 321J.2 or 124.401.
Iowa Code § 321.279(3)(b)–(c). These conditions are not present in this case.
                                     9

result, Hearn’s argument that there was insufficient evidence that he was

participating in an underlying felony is without merit.

      Hearn argues, in the alternative, that he had withdrawn from the

scene of the crime and eluded pursuers under the statutory language of

section 702.13. The State offered no evidence to show Hearn was still at

the crime scene at the time of his encounter with Officer Colclasure. The

evidence showed that, at the time the chase began, Hearn was traveling

on West Kimberly Road some undisclosed distance from the crime

scene—the Wal-Mart parking lot—and approximately fourteen minutes

had elapsed after the 911 call.      Therefore, the remaining question is

whether Hearn had “eluded pursuers, if any there be” at the time the

officers spotted the fleeing vehicles.     See id.   In order to answer this

question, we must determine the meaning of the statutory phrase

“eluded pursuers, if any there be.” See id.

      The State argues that, under Iowa Code section 702.13, it is

sufficient that the officers involved were responding to the crime when

they spotted the Grand Am, and then the Oldsmobile, on West Kimberly

Road driving away from the crime scene. The State asserts the language

of the statute does not require “continuous” pursuit from the crime

scene.   Instead, the State suggests an officer must be considered a

pursuer for the purpose of the felony-eluding statute if the officer is

responding   in   close   temporal   and     geographic   proximity   to   the

commission of a crime.      If the law were otherwise, the State claims,

felony eluding would never be available when the predicate crime is

carjacking because pursuit of carjackers rarely begins from the crime

scene.

      In contrast, Hearn offers a narrower reading of the statute.

According to Hearn, in order for his conduct to be within the scope of the
                                    10

prong of the statute relating to pursuers, the law enforcement officers

must be in direct pursuit at the time that the accused leaves the crime

scene.     Hearn argues once a participant in a crime escapes the crime

scene, and is not at that point in time and at that location being directly

pursued, the statute is no longer applicable.

      2.     Analysis.   In determining the meaning of statutes, “ ‘our

primary goal is to give effect to the intent of the legislature.’ ” State v.

Anderson, 782 N.W.2d 155, 158 (Iowa 2010) (quoting In re Detention of

Betsworth, 711 N.W.2d 280, 283 (Iowa 2006)). “That intent is evidenced

by the words used in the statute.” State v. Kidd, 562 N.W.2d 764, 765

(Iowa 1997). “When a statute is plain and its meaning clear, courts are

not permitted to search for meaning beyond its express terms.” State v.

Chang, 587 N.W.2d 459, 461 (Iowa 1998). In the absence of legislative

definition, we give words their ordinary meaning.      State v. White, 545

N.W.2d 552, 555 (Iowa 1996). In interpreting criminal statutes, however,

we have repeatedly stated that provisions establishing the scope of

criminal liability are to be strictly construed with doubts resolved therein

in favor of the accused.    State v. Muhlenbruch, 728 N.W.2d 212, 216

(Iowa 2007).

      The starting point of interpreting a statute is analysis of the

language chosen by the legislature. In order to escape liability for the

crime of felony eluding, an accused must leave the scene of the crime,

which admittedly occurred here, but must also have “eluded pursuers, if

any there be.” See Iowa Code §§ 321.279(3)(a), 702.13. A “pursuer” is

defined in Webster’s Third New International Dictionary as “one that

chases or follows after.”   Webster’s Third New International Dictionary

1848 (unabr. ed. 2002).       Similarly, Black’s Law Dictionary defines
                                     11

“pursuit” as “[t]he act of chasing to overtake or apprehend.” Black’s Law

Dictionary 1356 (9th ed. 2009).

      We are convinced that the ordinary meaning of “pursuer” includes

law enforcement officers who proceed in the direction of the crime scene

in response to a 911 call related to the crime with the hope of

apprehending     criminal   suspects.      Under    the    commonly     held

understanding of the term, law enforcement officers racing toward the

scene of a crime in response to a 911 call for assistance are “pursuers” of

any suspect they encounter, even though they did not visualize the

suspect at the crime scene itself and did not commence their pursuit of

the suspect from the crime scene itself.

      In reaching this conclusion, we note the inclusive term “pursuer” is

not qualified in the statute. As a result, there is no basis for reading into

the statute a narrowing requirement of “continuous pursuit commencing

at the crime scene.” Had the legislature intended to confine the reach of

the statute in such a narrow fashion, it could have used words of

limitation. See, e.g., Kidd, 562 N.W.2d at 765–66 (holding use of “an” is

unambiguous in context of crime of possession of “an” offensive weapon);

State v. Zeien, 505 N.W.2d 498, 498–99 (Iowa 1993) (declining to limit

unqualified “no right” language in property crime statute to exclude acts

of domestic violence).

      Further, limiting the statute to situations involving continuous

pursuit of a suspect commencing at the crime scene makes no sense in

light of the legislative policy manifest in the language of the statute. The

purpose of the statute is evident in its terms and requires no resort to

extrinsic materials. The statute recognizes that a suspect eluding law

enforcement officers in a high-speed chase, after committing a serious

crime, threatens innocent bystanders and other third parties with
                                      12

serious harm. The threat of such serious harm occurs when the officers

begin pursuit in close temporal and geographic proximity to the crime

itself as well as when the officers have been in continuous bumper-to-

bumper contact with the accused from the crime scene. The underlying

purposes of the statute in this case do not support the distinction that

Hearn seeks to draw between continuous pursuit from the crime scene

and pursuit that occurs in response to a 911 call and begins in close

temporal and geographic proximity to the crime. See Muscarello v. United

States, 524 U.S. 125, 132–33, 118 S. Ct. 1911, 1916, 141 L. Ed. 2d 111,

118–19 (1998) (holding phrase “carrying a firearm” in criminal statute

includes driving a car with a gun in the trunk because it would not make

sense to penalize one who walks with a gun in a bag, but to ignore a

similar individual who drives with the same gun in a bag in his car). The

statute must not be construed in a way to defeat its plain public

purpose. State v. Peck, 539 N.W.2d 170, 173 (Iowa 1995) (stating that

statutes must be construed reasonably and in a way not to defeat their

plain purpose); State v. Nelson, 178 N.W.2d 434, 437 (Iowa 1970) (stating

that criminal statutes “are not to be construed so strictly as to defeat the

obvious intention of the Legislature”).

      Our common sense interpretation is supported by analogy to cases

involving the pursuit of felons by law enforcement officers beyond the

territorial limits of the officer’s political jurisdiction. An often-cited case

is United States v. Getz, 381 F. Supp. 43 (E.D. Pa. 1974), aff’d, 510 F.2d

971 (3d Cir. 1975). In Getz, the court considered whether officers made

a valid arrest outside their jurisdiction under applicable state law. Getz,

381 F. Supp. at 45. The officers involved were immediately dispatched to

the crime scene, but before they arrived they were diverted by radio

communications informing them that a vehicle matching the description
                                         13

of the getaway car was sighted parked near a motel in a city outside the

officers’ jurisdiction.   Id. at 45–46.       The officers proceeded to the area

and ultimately arrested the defendants outside their jurisdiction. Id. at

46. The Getz defendants claimed the arrest was invalid because, under

the applicable statute, a law enforcement officer may make an out-of-

jurisdiction arrest only if the officer “continues in pursuit of the offender

after the commission of the offense.” Id. at 45.

      The Getz court held the terms of the statute were satisfied. Id. at

46. The court rejected the view that only “a fender-smashing Hollywood

style chase scene would satisfy the requirement of the statute.”               Id.

According to the Getz court, where the officers “proceeded diligently in

their search for the fleeing robbers and there was no hiatus or

interruption in their efforts,” the requirement that the officers “continue[]

in pursuit” of the fleeing felons is satisfied. Id.; see also Reyes v. Slayton,

331 F. Supp. 325, 327 (W.D. Va. 1971) (noting phrase “close pursuit” in

statute related to apprehension of fleeing felons outside jurisdiction is a

relative term involving time and distance and includes situation where

the arresting officers began an unbroken search within minutes of a

robbery and armed with a description of the perpetrator, even though

they did not see accused until outside jurisdiction); Charnes v. Arnold,

600 P.2d 64, 66 (Colo. 1979) (en banc) (holding “fresh pursuit” does not

require   continuous      surveillance    of    the   suspect   or   uninterrupted

knowledge of his whereabouts, but only continuous and uninterrupted

efforts); Cole v. United States, 678 A.2d 554, 555–56 (D.C. 1996) (holding

“fresh pursuit” does not require bumper-to-bumper chase, but only that

police act diligently, from clue to clue, without interruption, to

apprehend suspect); cf. State v. Williams, 776 So. 2d 1066, 1071 (Fla.

Dist. Ct. App. 2001) (holding that there was no continuous flight from a
                                    14

carjacking to a fatal collision for purposes of felony murder when

defendants stopped for pizza and hung out after the carjacking).

      Nothing in our previous case law under section 702.13 is

inconsistent with this approach.      We previously interpreted section

702.13 in State v. Doggett, 687 N.W.2d 97, 101 (Iowa 2004), where we

held a defendant was not “participating in a public offense.” In Doggett,

the defendant’s public offense was failure to appear for a trial. Doggett,

687 N.W.2d at 100.     Ten days after failing to appear in court, he led

police on a dangerous high-speed chase.        Id. at 101.   We held the

defendant was no longer participating in a public offense, emphasizing

the length of time since the crime (ten days), the separate location of the

offense (the courtroom), and that there were no pursuers. Id. The facts

of Doggett are a far cry from the facts here: there was no reasonably

contemporaneous pursuit of the defendant in the approximate area of

the underlying crime and in response to a police report.

      In State v. Philo, 697 N.W.2d 481 (Iowa 2005), we also examined

what constitutes “participating in a public offense.”        In Philo, the

defendant refused to stop for police officers on the same day as his prior

offense.   Philo, 697 N.W.2d at 483–84.       Philo had stolen a car in

Buchanan County. Id. at 483. Later, on the same day, police in Black

Hawk County ran a random license plate check on the stolen car,

discovered it was stolen, and attempted to stop the vehicle, at which

point Philo attempted to elude police. Id. at 483–84. We held Philo was

no longer participating in a public offense and explained that the statute,

by its terms, “is limited to withdrawal from the crime scene and is only

extended beyond the crime scene in the event the accused, who has not

been arrested, is pursued.” Id. at 487. The language in Philo does not

require continuous pursuit commencing from the crime scene, but only
                                      15

requires that if liability is to attach after the accused has left the crime

scene, the accused must be “pursued.” See id. The notion that a police

officer who begins chasing an accused approximately fourteen minutes

after a 911 call reporting the crime and in close geographic proximity to

the crime scene amounts to a “pursuer” under the statute is not

inconsistent with Philo.

      We recognize the principle of construing a statute reasonably in

light of its plain purpose is sometimes in tension with the rule of lenity,

which directs that criminal statutes are to be strictly construed in favor

of the accused. State v. Hagedorn, 679 N.W.2d 666, 669 (Iowa 2004).

Our interpretation of section 702.13 does not run afoul of the rule of

lenity.   The rule of lenity requires that ambiguous statutes imposing

criminal liability be strictly construed in favor of the defendant.

Originally conceived to mitigate the extension of the death penalty to

many criminal acts in England, the modern purposes of the rule of lenity

include providing fair notice that conduct is subject to criminal sanction,

preventing inconsistent and arbitrary enforcement of the criminal law,

and promoting separation of powers by ensuring that crimes are created

by the legislature, not the courts. See John Calvin Jefferies, Jr., Legality,

Vagueness, and the Construction of Penal Statutes, 71 Va. L. Rev. 189,

198–201 (1985); see also Livingston Hall, Strict or Liberal Construction of

Penal Statutes, 48 Harv. L. Rev. 748, 756–760 (1935). It is sometimes

said that the rule of lenity is rooted in a “generic bias in favor of liberty,”

Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 Sup. Ct.

Rev. 345, 349 (1994) [hereinafter Kahan], or, as Chief Justice John

Marshall stated years ago, “the tenderness of the law for the rights of

individuals,” United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 95, 5 L.

Ed. 37, 42 (1820). It has also been maintained that the rule of lenity is
                                   16

necessary to promote democratic responsiveness in the establishment of

crimes.   Zachary Price, The Rule of Lenity as a Rule of Structure, 72

Fordham L. Rev. 885, 922 (2004) [hereinafter Price].

       At the outset, we recognize there is controversy regarding the

precise scope of the rule of lenity. The United States Supreme Court in

recent years has embraced a relatively narrow view of the rule, commonly

referred to as the Moskal approach (after the leading case). See Moskal v.

United States, 498 U.S. 103, 111 S. Ct. 461, 112 L. Ed. 2d 449 (1990).

Under the Moskal approach, the question of whether a statute is

sufficiently “ambiguous” to invoke the rule of lenity is confronted only

after the court has exhausted all interpretive techniques, including

consideration of legislative history and other extrinsic evidence.   Id. at

108, 111 S. Ct. at 465, 112 L. Ed. 2d at 458.      Further, the Supreme

Court has held the rule of lenity is applied only in cases of “grievous

ambiguity.” Chapman v. United States, 500 U.S. 453, 463, 111 S. Ct.

1919, 1926, 114 L. Ed. 2d 524, 537 (1991). The impact of the Supreme

Court’s formulation is that apparent textual ambiguity can be eliminated

through statutory construction, and the rule of lenity applies only as a

tie breaker in cases where there is no basis for choosing among plausible

interpretations of a statute. Price, 72 Fordham L. Rev. at 891.

       In the past, Justice Scalia has dissented from the majority

approach to lenity. According to Justice Scalia, the rule of lenity should

be applied toward the beginning of the interpretive process and not at the

end.   United States v. R.L.C., 503 U.S. 291, 307–11, 112 S. Ct. 1329,

1339–41, 117 L. Ed. 2d 559, 573–76 (1992) (Scalia, J., concurring). If a

criminal statute is textually ambiguous, according to Justice Scalia’s

R.L.C. concurrence, the rule of lenity applies and the statute should be

given a narrow construction. Id. at 307–08, 112 S. Ct. at 1339, 117 L.
                                     17

Ed. 2d at 573–74. According to Justice Scalia, the textual ambiguity in a

statute imposing criminal liability cannot be resolved through resort to

legislative history or other extrinsic materials. Id. at 308–09, 112 S. Ct.

at 1340, 117 L. Ed. 2d at 574–75; see also Price, 72 Fordham L. Rev. at

891–93; Sarah Newland, Note, The Mercy of Scalia: Statutory Construction

and the Rule of Lenity, 29 Harv. C.R.-C.L. L. Rev. 197, 198 (1994).

Although Justice Scalia has not persuaded a majority of the Supreme

Court to adopt his lenity framework, his plurality opinion in United

States v. Santos, 553 U.S. 507, 514–15, 128 S. Ct. 2020, 2025–26, 170

L. Ed. 2d 912, 920–21 (2008), superseded by statute on other grounds,

Pub. L. No. 111–21, 123 Stat. 1617, may suggest a more rigorous

application of lenity than prior cases.

      Many state courts follow the Supreme Court’s Moskal formulation

of the rule of lenity. Price, 72 Fordham L. Rev. at 891. The incorporation

of the Moskal approach in state courts, however, has sometimes been

questioned.     See State v. Lutters, 853 A.2d 434, 447–48 (Conn. 2004)

(Zarella, J., concurring) (“[T]his court’s continued reference to the

language of Moskal is unwarranted in the absence of its own examination

of whether the use of extratextual sources to clarify an ambiguous

statute is consistent with the principle of fair warning.”).

      Although we have many cases citing and applying the rule, our

cases tend to be conclusory, less than nuanced, and arguably

inconsistent.    Compare Muhlenbruch, 728 N.W.2d at 216 (invoking the

rule of lenity without reference to public policy of combating child

pornography or legislative history), with Hagedorn, 679 N.W.2d at 670

(citing public policy of preventing domestic violence not manifest in

statutory language as alternate rationale for broad construction of

burglary statute), and Lenertz v. Mun. Ct., 219 N.W.2d 513, 516 (Iowa
                                      18

1974) (considering legislative history in determining that consumer fraud

provision did not impose criminal sanction). These cases have an ad hoc

quality and suggest that we have sometimes sought to avoid the rule of

lenity through construction and sometimes embraced it rather quickly.

Because extrinsic legislative history in Iowa is generally sparse, our cases

rarely discuss such materials in reaching an authoritative construction

of a criminal statute.      We have also not directly addressed whether a

heightened level of ambiguity, or “grievous ambiguity,” is required to

invoke the rule. See State v. Finders, 743 N.W.2d 546, 549 (Iowa 2008)

(stating statute was not a “model of clarity” yet was not ambiguous, and

even if it were ambiguous, obvious public policy underlying legislative

intent would control); see also Kahan, 1994 Sup. Ct. Rev. at 384 (noting

that “what counts as ‘ambiguity’ for purposes of the rule” is a question

that “does not answer itself”).

       At a minimum, however, our cases stand for the proposition that

the rule of lenity does not apply if there is no ambiguity regarding the

application of a statute to a given set of facts after examination of the

text, the context of the statute, and the evident statutory purpose as

reflected in the express statutory language. For the reasons expressed

above, we are convinced the term “pursuer,” as applied to this case, is

not ambiguous.       Given the straightforward language used and the

obvious legislative purpose, we see no appreciable risk that a defendant

would be without fair notice that conduct like that in this case could give

rise to additional criminal liability, no risk of arbitrary or selective

criminal enforcement based on political, racial, or other bias, virtually no

risk that we have violated separation of powers by extending criminal

liability   beyond   that    contemplated   by   the   legislature,   and   no

undermining of democratic responsiveness.
                                      19

      We are thus not violating the time-honored rule that criminal

liability cannot be expanded beyond express legislative terms by

construction or implication.      State v. Lovell, 23 Stiles 304, 305 (Iowa

1867). Indeed, we have the exact opposite situation in this case. While

we recognize that penal statutes are inelastic, Nelson, 178 N.W.2d at

437, this does not mean the legislature is prohibited from using

unqualified language in criminal statutes.        In this case, we simply

decline to narrow a broad legislative formulation by implying or

constructing limitations not present in the statute and undercutting its

obvious public purpose. See Hagedorn, 679 N.W.2d at 669; Nelson, 178

N.W.2d at 437 (stating that criminal statutes “are not to be construed so

strictly as to defeat the obvious intention of the Legislature”); 3 Norman

J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction,

§ 59:3, at 167–68 n.1 (7th ed. 2008) (citing State v. Schramel, 581

N.W.2d 400, 403 (Minn. Ct. App. 1998) (“Although a penal statute must

be strictly construed, that does not justify a court to use restrictive

language that is not there.”)).

      In sum, we conclude that there was substantial evidence that

Hearn aided and abetted the carjacking and thus cannot escape his

conviction of felony eluding on the ground that he was not participating

in an underlying felony. Further, we conclude that when police officers

responding to a contemporaneous crime report come upon the accused

in close temporal and geographic proximity to the crime and give chase,

the police officers are “pursuers” under Iowa Code section 702.13. As a

result, Hearn’s challenge to his felony eluding conviction on the ground

that pursuers under the statute must be in continuous pursuit from the

scene of the crime cannot be sustained.
                                     20

      IV. Conclusion.

      Although circumstantial, substantial evidence supports Hearn’s

convictions   for   second-degree    robbery   and    second-degree   theft.

Substantial evidence also supports Hearn’s conviction for felony eluding

because Hearn was participating in a felony and had not eluded

pursuers at the time of the police chase giving rise to the charge. As a

result, the judgment of the district court is affirmed.

      DECISION OF COURT OF APPEALS AND JUDGMENT OF

DISTRICT COURT AFFIRMED.

      All justices concur except Wiggins and Hecht, JJ., who concur in

part and dissent in part, and Mansfield, J., who takes no part.
                                     21

                                                  #09–0142, State v. Hearn

WIGGINS, Justice (concurring in part and dissenting in part).

      I concur in part and dissent in part with the majority’s decision. I

concur   with   the   majority’s   conclusion   that    substantial   evidence

supported the verdict finding Hearn aided and abetted robbery and theft.

I part ways with the majority’s conclusion that Hearn is guilty of felony

eluding under the legislative scheme concerning the law of eluding.

      The majority lost its way when it broadly defined the word

“pursuer,” analogized our eluding statute to the hot-pursuit statute, and

turned the rule of lenity on its head. What the majority failed to consider

anywhere in its decision is the statutory scheme devised by our

legislature regarding the crime of eluding.

      The goal of statutory interpretation is to determine legislative

intent. Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa

2004). When interpreting a statute, we are required to assess a statute

in its entirety, not just isolated words or phrases. State v. Young, 686

N.W.2d 182, 184–85 (Iowa 2004).           Indeed, “we avoid interpreting a

statute in such a way that portions of it become redundant or irrelevant.”

T & K Roofing Co. v. Iowa Dep’t of Educ., 593 N.W.2d 159, 162 (Iowa

1999).   We look for a reasonable interpretation that best achieves the

statute’s purpose and avoids absurd results.           Harden v. State, 434

N.W.2d 881, 884 (Iowa 1989).       Under the pretext of interpretation, we

“may not extend, enlarge, or otherwise change the meaning of a statute.”

Auen, 679 N.W.2d at 590. Finally, we strictly interpret criminal statutes

with doubts resolved in the defendant’s favor.         State v. Gonzalez, 718

N.W.2d 304, 308 (Iowa 2006).
                                     22

      To understand the basis for my dissent, it is necessary to review

the entire legislative scheme for the crime of eluding.          The statute

provides:
             1. The driver of a motor vehicle commits a serious
      misdemeanor if the driver willfully fails to bring the motor
      vehicle to a stop or otherwise eludes or attempts to elude a
      marked official law enforcement vehicle driven by a
      uniformed peace officer after being given a visual and
      audible signal to stop. The signal given by the peace officer
      shall be by flashing red light, or by flashing red and blue
      lights, and siren. For purposes of this section, “peace officer”
      means those officers designated under section 801.4,
      subsection 11, paragraphs “a”, “b”, “c”, “f”, “g”, and “h”.
            2. The driver of a motor vehicle commits an
      aggravated misdemeanor if the driver willfully fails to bring
      the motor vehicle to a stop or otherwise eludes or attempts to
      elude a marked official law enforcement vehicle that is driven
      by a uniformed peace officer after being given a visual and
      audible signal as provided in this section and in doing so
      exceeds the speed limit by twenty-five miles per hour or
      more.
             3. The driver of a motor vehicle commits a class “D”
      felony if the driver willfully fails to bring the motor vehicle to
      a stop or otherwise eludes or attempts to elude a marked
      official law enforcement vehicle that is driven by a uniformed
      peace officer after being given a visual and audible signal as
      provided in this section, and in doing so exceeds the speed
      limit by twenty-five miles per hour or more, and if any of the
      following occurs:
            a. The driver is participating in a public offense, as
      defined in section 702.13, that is a felony.
           b. The driver is in violation of section 321J.2 or
      124.401.
            c. The offense results in bodily injury to a person
      other than the driver.

Iowa Code § 321.279 (2009).        Section 321.279(3)(a) incorporates the

statutory definition of “participating in a public offense” contained in

section 702.13 as an element of the crime.          Section 702.13 defines

“participating in a public offense” as the defendant’s conduct

      during part or the entire period commencing with the first
      act done directly toward the commission of the offense and
                                     23
      for the purpose of committing that offense, and terminating
      when the person has been arrested or has withdrawn from
      the scene of the intended crime and has eluded pursuers, if
      any there be.

Id. § 702.13.

      The statutory scheme chosen by the legislature makes it very clear

that the classification grades for the crime of eluding is based on the

increasing potential of harm to the public.       Situations with the least

potential of harm are when a driver of a vehicle “willfully fails to bring the

motor vehicle to a stop or otherwise eludes or attempts to elude a

marked official law enforcement vehicle driven by a uniformed peace

officer after being given a visual and audible signal to stop.”            Id.

§ 321.279(1). Under these circumstances, the driver commits a serious

misdemeanor. Id.

      Situations with a greater potential of harm are when
      the driver willfully fails to bring the motor vehicle to a stop or
      otherwise eludes or attempts to elude a marked official law
      enforcement vehicle that is driven by a uniformed peace
      officer after being given a visual and audible signal as
      provided in this section and in doing so exceeds the speed
      limit by twenty-five miles per hour or more.

Id. § 321.279(2). The legislature knew that a driver exceeding the speed

limit by twenty-five miles per hour or more is more likely to cause injury

to other persons and property than a driver who simply fails to stop and

does not drive at an excessive speed. Thus, the legislature classified this

type of eluding as an aggravated misdemeanor. Id.

      Finally, situations involving the greatest potential of harm and

situations that cause actual harm occur when
      the driver willfully fails to bring the motor vehicle to a stop or
      otherwise eludes or attempts to elude a marked official law
      enforcement vehicle that is driven by a uniformed peace
      officer after being given a visual and audible signal as
      provided in this section, and in doing so exceeds the speed
                                        24
      limit by twenty-five miles per hour or more, and if any of the
      following occurs:
            a. The driver is participating in a public offense, as
      defined in section 702.13, that is a felony.
           b. The driver is in violation of section 321J.2 or
      124.401.
            c. The offense results in bodily injury to a person
      other than the driver.

Id. § 321.279(3).    Under these situations, the legislature has declared

eluding to be a class “D” felony. Id.

      One way felony eluding occurs is when the driver willfully fails to

bring his or her vehicle to a stop and exceeds the speed limit by twenty-

five miles per hour or more, while participating in a felony.                 Id.

Participating in a felony terminates “when the person has been arrested

or has withdrawn from the scene of the intended crime and has eluded

pursuers.”    Id. § 702.13.     The majority makes a wrong turn in its

analysis, by giving “pursuers” a broad definition rather than a narrow

one, as required by the legislative scheme. I am convinced the legislative

scheme indicates a legislative intent that to be guilty of felony eluding,

continuous pursuit from the crime scene is required.

      I agree with the majority that a “pursuer” is a “one that chases or

follows after.” Webster’s Third New International Dictionary 1848 (unabr.

ed. 2002). A police officer is always pursuing bad guys. For example,

officers on routine patrol are continuously running license plates to

determine if a vehicle is stolen. If an officer runs a plate, determines the

vehicle is stolen, and gives chase, under the broad definition of pursuer,

the driver is guilty of felony eluding if the driver willfully fails to bring the

vehicle to a stop and exceeds the speed limit by twenty-five miles per

hour or more.
                                       25

      Moreover, the majority’s interpretation of the statute gives a jury

no guidance as to when the officer is in pursuit. Is the officer in pursuit

based on how far away he or she may be from the scene? Does the jury

determine whether the officer was in pursuit by how much time has

passed between the commission of the crime and when the officer

observed the vehicle? Is it a combination of both time and distance? By

applying the majority’s analysis, can a person be guilty of felony eluding

if the officer learns of a stolen vehicle and encounters the vehicle an hour

later? I think so. Thus, a judge has no way to instruct the jury and the

jury has no way to differentiate between felony eluding and aggravated

misdemeanor eluding.

      In addition, we are required to interpret a statute so it is

constitutional. Hensler v. City of Davenport, 790 N.W.2d 569, 578 (Iowa

2010). Under the majority’s interpretation, what notice does the statute

give a citizen as to when an eluding changes from a misdemeanor to a

felony? Does the majority’s interpretation create a due process problem?

I think so.

      It is clear to me the legislative scheme requires continuous pursuit

to establish felony eluding. A situation involving continuous pursuit has

the most potential to cause severe harm. Criminals will do unpredictable

things when confronted by the police at a crime scene. The victims of the

crime and innocent bystanders are more prone to be injured by a

desperate criminal trying to flee the scene of a crime. Therefore, felony

eluding under 321.279(3)(a) should be reserved for those situations when

the officer confronts a criminal at the scene. Thus, if the defendant has

withdrawn from the scene without an officer pursuing him or her, the

defendant     is   guilty   of   aggravated   misdemeanor   eluding.   This

interpretation not only gives juries and defendants a bright-line rule
                                          26

differentiating between felony eluding and aggravated misdemeanor

eluding, but also is consistent with the rule of lenity requiring us to

interpret     criminal    statutes   strictly,   with    doubts     resolved   in   the

defendant’s favor. Gonzalez, 718 N.W.2d at 308.

        At the time the officer began the chase, Hearn had withdrawn from

the scene of the crime, without any person pursuing him. Neither the

victim nor any innocent bystanders at the scene of the crime were in any

danger due to this high-speed chase.              Consistent with the legislative

scheme, I would find Hearn guilty of aggravated misdemeanor eluding.

        As a result, I would vacate the decision of the court of appeals,

reverse the judgment of the district court, remand the case to the district

court    to   enter      judgment    against     the    defendant    for   aggravated

misdemeanor eluding, and resentence the defendant accordingly.

        Hecht, J., joins this concurrence in part and dissent in part.
