      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                                      NO. 03-03-00486-CV

                        Texas Department of Public Safety, Appellant

                                                v.

                                William Robert Loeb, Appellee

            FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
           NO. 266,861, HONORABLE ORLINDA L. NARANJO, JUDGE PRESIDING

                                          OPINION

               This case of statutory construction requires us to determine whether the term

“convicted” in the Texas concealed handgun license statute, see Tex. Gov’t Code Ann. § 411.171(4)

(West Supp. 2004), encompasses a felony conviction that has been set aside under the Federal Youth

Corrections Act (“YCA”).1 The Texas Department of Public Safety contends that the trial court

erred in holding that appellee William Robert Loeb’s set-aside conviction under the YCA was an

“expungement by legislative design” and for that reason is excluded from the term “convicted” under

       1
          See Act of Sept. 30, 1950, ch. 1115, § 2, 64 Stat. 1089; amended by Act of Oct. 3, 1961,
Pub. L. 87-336, 75 Stat. 750; amended by Act of Mar. 15, 1976, Pub. L. 94-233, § 9, 90 Stat. 232
(codified as 18 U.S.C. § 5021) (repealed 1984) (allowing for the “set aside” of a conviction)
[hereinafter “18 U.S.C. § 5021”].
the concealed handgun license statute. Because we find that “convicted” as defined in the concealed

handgun license statute encompasses a set-aside conviction under the YCA, we reverse the decision

of the trial court and render judgment that Loeb is ineligible to obtain a concealed handgun license.

                     FACTUAL AND PROCEDURAL BACKGROUND

               The facts of this case are not in dispute. In 1981, Loeb, at age 19, obtained through

the mail a driver’s license with his photograph and someone else’s name. In 1983, Loeb was

indicted for and pleaded guilty to the federal felony offense of mail fraud. See 18 U.S.C.A. § 1341

(West Supp. 2003). The federal court suspended imposition of sentence and placed Loeb on two

years’ probation under the YCA, beginning in October 1983.2 The YCA was repealed in its entirety

in 1984. In June 1985, before the probationary period expired, the court, as allowed by the terms of

the YCA, discharged Loeb from probation, set aside his conviction, and issued a certificate of

vacation of conviction. See 18 U.S.C. § 5021(b) (repealed 1984). The set-aside provision stated:

       Where a youth offender has been placed on probation by the court, the court may
       thereafter, in its discretion, unconditionally discharge such youth offender from
       probation prior to the expiration of the maximum period of probation theretofore
       fixed by the court, which discharge shall automatically set aside the conviction, and
       the court shall issue to the youth offender a certificate to that effect.

       2
          See Act of Sept. 30, 1950, ch. 1115, § 2, 64 Stat. 1087, amended by Act of Mar. 15, 1976,
Pub. L. 94-233, § 9, 90 Stat. 232 (codified at 18 U.S.C. § 5010) (repealed 1984) (allowing for the
imposition of a suspended sentence). A “youth offender” under the YCA meant a person who was
under the age of twenty-two at the time of conviction. See Act of Sept. 30, 1950, ch. 1115, § 2, 64
Stat. 1086, amended by Act of May 15, 1976, Pub. L. 94-233, § 4, 90 Stat. 231 (codified at 18 U.S.C.
§ 5006(e)) (repealed 1984). The YCA ordinarily was not applied to convicted persons under the age
of eighteen, who were eligible for sentencing under the provisions of the Federal Juvenile
Delinquency Act. See 18 U.S.C.A. §§ 5031-5042 (West 2000 & Supp. 2003).

                                                 2
Id. The statute did not provide for the removal or destruction of records.

                In 2001, Loeb applied to the Department for a license to carry a concealed handgun.

As part of his application, he averred in an affidavit that he had not been convicted of a felony. The

Department denied the application on the ground that Loeb had been convicted of a felony because

his criminal history record listed the conviction for mail fraud. See Tex. Gov’t Code Ann.

§ 411.172(a)(3) (West Supp. 2004). Loeb requested an administrative hearing on the decision in a

justice court, id. § 411.180(a) (West Supp. 2004), which found that the Department’s denial was not

supported by a preponderance of the evidence. The Department then appealed the decision to a

county court at law. Id. § 411.180(e) (West Supp. 2004). In a trial de novo without a jury, see id.,

the court affirmed the justice court’s ruling and granted Loeb’s application for a concealed handgun

license. Pursuant to the Department’s request, the trial court also issued findings of fact and

conclusions of law.

                In one issue, the Department appeals, contending that the trial court erred in finding

that because Loeb’s set-aside conviction was an “expungement statute by legislative design,” it

cannot constitute a conviction under the concealed handgun license statute.

                                             ANALYSIS

                The Department does not challenge the trial court’s findings of fact, only its

conclusion of law that Loeb’s set-aside conviction was an expungement by legislative design. The

parties agree that the issue before us is one of statutory construction, a question of law that we review

de novo. Texas Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). We must ascertain

and give effect to the legislature’s intent for the provisions we are construing. Tex. Gov’t Code Ann.

                                                   3
§ 312.005 (West 1998); Continental Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex. 2002); Sorokolit

v. Rhodes, 889 S.W.2d 239, 241 (Tex. 1994); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.

App. 1991) (When interpreting a statute, court “focuses on the literal text of the statute in question

and attempt[s] to discern the fair, objective meaning of that text at the time of its enactment.”). The

legislature’s intent should be determined by reading the language used in the particular statute and

construing the statute in its entirety. See In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d

371, 380 (Tex. 1998); Taylor v. Firemen’s & Policemen’s Civil Serv. Comm’n, 616 S.W.2d 187, 190

(Tex. 1981). Further, we should read every word, phrase, and expression in a statute as if it were

deliberately chosen, and presume the words excluded from the statute are done so purposefully. See

Gables Realty Ltd. P’ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873 (Tex. App.—Austin

2002, pet. denied); City of Austin v. Quick, 930 S.W.2d 678, 687 (Tex. App.—Austin 1996) (citing

Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981)), aff’d, 7 S.W.3d 109 (Tex.

1999). We will begin our analysis by emphasizing certain aspects of the language of the statute at

issue here.

               A person is eligible for a concealed handgun license only if the person has not been

convicted of a felony. Tex. Gov’t Code Ann. § 411.172(a)(3). Because the term “convicted” is

defined in the statute, we are bound to construe that term by its statutory definition only. Needham,

82 S.W.3d at 318. As defined in the statute,

       “Convicted” means an adjudication of guilt or an order of deferred adjudication
       entered against a person by a court of competent jurisdiction whether or not the
       imposition of the sentence is subsequently probated and the person is discharged
       from community supervision. The term does not include an adjudication of guilt or
       an order of deferred adjudication that has been subsequently:

                                                  4
       (A) expunged; or

       (B) pardoned under the authority of a state or federal official.

Tex. Gov’t Code Ann. § 411.171(4). Thus, “convicted” means any adjudication of guilt or order of

deferred adjudication whether or not imposition of sentence is probated and the person is discharged

from probation unless it is subsequently expunged or is the subject of an official pardon. The parties

agree that a federal court adjudicated Loeb guilty of the felony offense of mail fraud, suspended

imposition of sentence, placed Loeb on probation, then within its discretion set aside the judgment

of conviction before Loeb’s probationary period expired.

               Both parties also agree that Loeb’s adjudication falls within the statutory definition

of “conviction,” with the disagreement being whether the set aside is equivalent to an expungement.

Although no Texas court has addressed the effect of a set-aside felony under the YCA, the Texas

Supreme Court has held that the dismissal of proceedings after successful completion of community

supervision under Texas law pursuant to article 42.12 of the code of criminal procedure is a

conviction as defined in the concealed handgun license statute. Tune v. Texas Dep’t of Pub. Safety,

23 S.W.3d 358, 363 (Tex. 2000). In Tune, the supreme court determined that the concealed handgun

license statute on its face included such a dismissal in the definition of a conviction because

“[n]othing in the statute suggests any exception for those who successfully complete probation and

are discharged and who have the indictment dismissed.” Id.3

       3
           The supreme court has since reaffirmed this holding. Texas Dep’t of Pub. Safety v.
McLendon, 35 S.W.3d 632, 633 (Tex. 2000) (For the purposes of the concealed handgun license
statute, “an order of deferred adjudication is not voided by a subsequent dismissal of the case upon
completion of probation.”); see also Texas Dep’t of Pub. Safety v. Randle, 31 S.W.3d 786, 788 (Tex.

                                                  5
                The concealed handgun license statute was enacted in 1995,4 more than ten years after

the YCA was repealed. A statute is presumed to have been enacted by the legislature with complete

knowledge of the existing law and with reference to it. McBride v. Clayton, 166 S.W.2d 125, 128

(Tex. 1942). Without an explicit reference in the concealed handgun license statute, a felony that

had been set aside under the extinct YCA could not have been within the legislature’s contemplation

as an exclusion from the definition of “convicted.” This legislative intent is further borne out by

numerous other criteria restricting eligibility to obtain a license.5 The Tune court also considered

App.—Houston [1st Dist.] 2000, no pet.) (plain language of statute includes order of deferred
adjudication subsequently dismissed); Texas Dep’t of Pub. Safety v. Biggert, 27 S.W.3d 182, 184
(Tex. App.—Houston [1st Dist.] 2000, no pet.) (same).
       4
          Act of May 16, 1995, 74th Leg., R.S., ch. 229, 1995 Tex. Gen. Laws 1998, 1998-2015
(codified at Tex. Rev. Civ. Stat. Ann. art. 29(ee)), repealed by Act of May 8, 1997, 75th Leg., R.S.,
ch. 165, § 10.01, 1997 Tex. Gen. Laws 327, 397-411 (recodified at Tex. Gov’t Code Ann.
§§ 411.171-.208 (since amended)).
       5
           A person is not eligible for a license unless the person

            (1) is a legal resident of this state for the six-month period preceding the date
                of application under this subchapter or is otherwise eligible for a license
                under Section 411.173(a);

            (2) is at least 21 years of age;

            (3) has not been convicted of a felony;

            (4) is not charged with the commission of a Class A or Class B misdemeanor
                or an offense under Section 42.01, Penal Code, or of a felony under an
                information or indictment;

            (5) is not a fugitive from justice for a felony or a Class A or Class B
                misdemeanor;

            (6) is not a chemically dependent person;

                                                   6
the legislature’s intent in its analysis: the “Legislature may wish to keep concealed handguns out

of the hands of persons who have been convicted of a felony, even if those persons satisfactorily

complete community supervision.” Id. at 364.

          (7) is not incapable of exercising sound judgment with respect to the proper
              use and storage of a handgun;

          (8) has not, in the five years preceding the date of application, been convicted
              of a Class A or Class B misdemeanor or an offense under Section 42.01,
              Penal Code;

          (9) is fully qualified under applicable federal and state law to purchase a
              handgun;

         (10) has not been finally determined to be delinquent in making a child support
              payment administered or collected by the attorney general;

         (11) has not been finally determined to be delinquent in the payment of a tax or
              other money collected by the comptroller, the tax collector of a political
              subdivision of the state, or any agency or subdivision of the state;

         (12) has not been finally determined to be in default on a loan made under
              Chapter 57, Education Code;

         (13) is not currently restricted under a court protective order or subject to a
              restraining order affecting the spousal relationship, other than a restraining
              order solely affecting property interests;

         (14) has not, in the 10 years preceding the date of application, been adjudicated
              as having engaged in delinquent conduct violating a penal law of the grade
              of felony; and

         (15) has not made any material misrepresentation, or failed to disclose any
              material fact, in an application submitted pursuant to Section 411.174 or in
              a request for application submitted pursuant to Section 411.175.

Tex. Gov’t Code Ann. § 411.172(a) (West Supp. 2004).

                                                 7
               But an adjudication of guilt or order of deferred adjudication may be excluded from

the term “conviction” if it is subsequently “expunged; or pardoned under the authority of a state or

federal official.” Tex. Gov’t Code Ann. § 411.171(4). Because a set-aside felony still constitutes

a conviction under the concealed handgun license statute, Loeb must have had his conviction

“expunged” or must have been “pardoned” to qualify for a license. See id. (excluding only expunged

convictions and pardons from the definition of “convicted”). We proceed to inquire, then, whether

the YCA set aside is equivalent to an expungement or a pardon.

               Loeb does not argue that he has been pardoned or that the set-aside procedure is

equivalent to a pardon. Rather, he urges that his felony conviction was expunged under the YCA.

The trial court concluded that the set-aside conviction was equivalent to an expungement.

“Expunged” is not defined in the concealed handgun license statute.          When construing an

unambiguous term in a statute, we generally interpret the statute according to its plain meaning.

State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002)

(citing Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999)).

Nevertheless, “[w]ords and phrases that have acquired a technical or particular meaning, whether

by legislative definition or otherwise, shall be construed accordingly.” Tex. Gov’t Code Ann.

§ 311.011(b) (West 1998); see Guthery v. Taylor, 112 S.W.3d 715, 721-22 (Tex. App.—Houston

[14th Dist.] 2003, no pet.) (“When the same or a similar term is used in the same connection in

different statutes, the term will be given the same meaning in one as in the other, unless there is

something to indicate that a different meaning was intended.”). Accordingly, we will look to the

code of criminal procedure for guidance on the definition of expungement under Texas law.

                                                 8
                Were Loeb convicted of an offense in Texas, he would have to be pardoned or

acquitted by the Court of Criminal Appeals to qualify for an expungement. See Tex. Code Crim.

Proc. Ann. art. 55.01(a), (b) (West Supp. 2004).6 Loeb would not be entitled to expungement of his

conviction under Texas law because dismissal from court-ordered community supervision for any

offense, other than a class C misdemeanor, does not entitle a petitioner to expunction of criminal

       6
           Section 55.01 provides, in pertinent part:

           Art. 55.01. Right to Expunction

           (a) A person who has been placed under a custodial or noncustodial arrest for
               commission of either a felony or misdemeanor is entitled to have all records
               and files relating to the arrest expunged if:

               (1) the person is tried for the offense for which the person was arrested and
                   is:

                    (A) acquitted by the trial court, except as provided by
                        Subsection (c) of this section; or

                    (B) convicted and subsequently pardoned . . . .
                         ....

           (b) Except as provided by Subsection (c) of this section, a district court may
               expunge all records and files relating to the arrest of a person who has been
               arrested for commission of a felony or misdemeanor under the procedure
               established under Article 55.02 of this code if the person is:

               (1) tried for the offense for which the person was arrested;

               (2) convicted of the offense; and

               (3) acquitted by the court of criminal appeals.

Tex. Code Crim. Proc. Ann. art. 55.01(a), (b) (West Supp. 2004).

                                                   9
records. Id. art. 55.01(a)(2)(B); see Texas Dep’t of Pub. Safety v. Wallace, 63 S.W.3d 805, 807 (Tex.

App.—Austin 2001, no pet.).

                In addition, an order of expungement under Texas law requires that each entity named

in the order:

       (1) return all records and files that are subject to the expunction order to the court
           or, if removal is impracticable, obliterate all portions of the record or file that
           identify the person who is the subject of the order and notify the court of its
           action; and

       (2) delete from its public records all index references to the records and files that are
           subject to the expunction order.

Tex. Code Crim. Proc. Ann. art. 55.02, § 5(a) (West Supp. 2004). After entry of an expunction

order, “the release, dissemination, or use of the expunged records and files for any purpose is

prohibited,” id. art. 55.03(1) (West Supp. 2004), unless “the person who is the subject of the

expunction order is again arrested for or charged with an offense arising out of the transaction for

which the person was arrested.” Id. art. 55.02, § 4(b) (West Supp. 2004). Thus, under Texas law,

expungement means the segregation or destruction of records and deletion of the record from

criminal record indexes.

                Under the YCA, the provision allowing for the set aside of a conviction does not

expressly address expunction. See 18 U.S.C. § 5021(b) (repealed 1984). Courts have struggled to

bestow a meaning on the term “set aside,”7 which the YCA leaves undefined. Several federal circuit

       7
          See United States v. Arrington, 618 F.2d 1119, 1124 n.8 (5th Cir. 1980) (declining to
determine whether the provision serves to expunge the record and holding that “[f]or the purposes
of this appeal, defining expunction to include at least setting aside his conviction is a satisfactory

                                                  10
courts agree that the effect of a set-aside felony is to give a youthful offender a “second chance.”8

But federal circuit courts generally reject a construction of the provision as an expungement statute,

holding that a set-aside felony is not equivalent to or does not necessarily result in physical

obliteration or segregation of the record of conviction.9

                Because the YCA does not expressly address “expungement” and the concealed

handgun license statute does not allow expungement unless a defendant is acquitted or pardoned,

we cannot construe a set-aside felony as an “expungement statute by legislative design.” In light of

the broad definition of “convicted” in the statute, the declaration in Tune that “convicted” includes

any adjudication of guilt unless the conviction is subsequently expunged or is the subject of a

pardon, and the legislative intent to restrict eligibility for a concealed handgun license to statutorily

described categories, we hold that a set-aside felony conviction under the YCA is a conviction for

resolution”); United States v. Purgason, 565 F.2d 1279, 1280-81 (4th Cir. 1977) (finding the set-
aside conviction “no longer viable” but determining “it unnecessary to decide whether the statute is
one of expunction in the broad sense of that term”).
        8
          See Mines v. National Transp. Safety Bd., 862 F.2d 617, 619 (6th Cir. 1988) (“second
chance” and a “clean slate”); Arrington, 618 F.2d at 1124 (“second chance”) (citing Dorszynski v.
United States, 418 U.S. 424, 432-35 (1974)); Doe v. Webster, 606 F.2d 1226, 1234 (D.C. Cir. 1979)
(“fresh start”).
        9
          See United States v. Wacker, 72 F.3d 1453, 1479-80 (10th Cir. 1995) (holding that set-
aside convictions may be considered at sentencing for another offense); United States v. Ashburn,
20 F.3d 1336, 1342-43 (5th Cir. 1994), reinstated in relevant part by 38 F.3d 803 (5th Cir. 1994)
(en banc) (same); United States v. Gardner, 860 F.2d 1391, 1399 (7th Cir. 1988) (same); United
States v. Doe, 747 F.2d 1358, 1359 (11th Cir. 1984) (holding that YCA does not authorize
destruction or segregation of set-aside conviction records); United States v. Doe, 732 F.2d 229,
230-32 (1st Cir. 1984) (same); United States v. Doe, 556 F.2d 391, 393 (6th Cir. 1977) (same);
United States v. McMains, 540 F.2d 387, 389 (8th Cir. 1976) (same). But see United States v. Doe,
980 F.2d 876, 881-82 (3d Cir. 1992) (holding that set-aside provision authorizes expungement);
Webster, 606 F.2d at 1232-37 (same).

                                                   11
 the purposes of the concealed handgun license statute. We sustain the Department’s issue, reverse

 the trial court’s decision, and render judgment that Loeb is not eligible to obtain a concealed

 handgun license.

                                          CONCLUSION

               Because “convicted” as defined in the concealed handgun license statute encompasses

Loeb’s felony conviction that was set aside under the Federal Youth Corrections Act, we reverse the

decision of the trial court and render judgment that Loeb is ineligible to obtain a concealed handgun

license.

                                              Jan P. Patterson, Justice

Before Justices B. A. Smith, Patterson and Pemberton: Opinion by Justice Patterson;
  Dissenting Opinion by Justice B. A. Smith

Reversed and Rendered

Filed: June 10, 2004

                                                 12


138 B.R. 937 (1992)
In re Kathleen M. REINDERS, Debtor.
Bankruptcy No. X91-01824S, Contested No. 5183.
United States Bankruptcy Court, N.D. Iowa, W.D.
March 12, 1992.
*938 Donald H. Molstad, Sioux City, Iowa, for debtor.
A. Frank Baron, Sioux City, Iowa, for intervenors John and Carol Reinders.
Lloyd W. Bierma, Sioux Center, Iowa, for Jeffrey Reinders.

MEMORANDUM AND ORDER RE: OBJECTION TO EXEMPTIONS AND MOTION TO AVOID LIENS
WILLIAM L. EDMONDS, Bankruptcy Judge.
The matters before the court are an objection to debtor's homestead exemption and her motion to avoid a lien against the homestead.[1] Hearing on the two motions was held January 28, 1992 in Sioux City, Iowa. This is a core proceeding under 28 U.S.C. §§ 157(b)(2)(B) and (K). The court now issues its findings of fact and conclusions of law pursuant to Fed.R.Bankr.P. 7052.

FINDINGS OF FACT
Kathleen and Jeffrey Reinders were married on November 13, 1981. When they were first married, they resided in a home owned by Jeffrey Reinders located at 105 Oak Street in Ireton, Iowa. The Reinders sold the home in May, 1982 for $22,000.00; after paying the mortgage and costs of sale, they recovered less than $2,000.00. The money was spent by the couple and is not involved in this dispute. After the sale, Reinders lived in a small apartment until 1983. Kerri Reinders, the couple's first child, was born January 8, 1983. It was while Kathleen was pregnant that they began to look for a larger home to accommodate their growing family.
Since before his marriage, Jeffrey Reinders has worked for Professional Nutritional Management, a division of Pro-Edge, Ltd. Sometime in the spring of 1983, David K. Smidt, Jeffrey's boss, approached him about Reinders' purchasing the Smidt home at 105  5th Street in Ireton. The details surrounding the negotiation of the sale of the residence are not totally clear. It appears that by the end of May, 1983, an agreement had been negotiated by Jeffrey under which the Reinders would purchase the Smidts' home for between $54,000.00 and $56,000.00. The Reinders were to assume a mortgage of approximately $30,000.00 held by United Federal Bank. In the face of rising interest rates, United Federal would not permit the Reinders to assume the mortgage at the Smidts' 8 per cent rate. Reinders agreed to assume the mortgage at 12.5 per cent. Kathleen Reinders testified that she was not fully aware of all of the details of the purchase until after its completion. She says that she had not been aware of the full price of the home prior to moving into it and that she had been surprised at the amount. She had presumed that the assumption of the loan and mortgage was sufficient to purchase the home without taking out an additional loan. Kathleen does not remember whether she signed an offer to buy.
The Reinders lacked approximately $26,000.00 of the purchase price. Jeffrey Reinders approached his father and mother, John and Carol Reinders, about obtaining a loan for the cash portion of the purchase price. Reinders' parents agreed to lend $30,000.00. Twenty-six thousand dollars was to be used to pay off the Smidts, and the remaining portion of the loan was to be *939 used to finance repairs and remodeling. The $30,000.00 from Jeffrey's mother and father was loaned in two installments  $20,000.00 on May 26, 1983 and $10,000.00 on May 31, 1983. The closing on the Smidt-Reinders sale took place May 31, 1983; the sellers executed a warranty deed on the same date. The deed was recorded on June 21, 1983. (Exhibit A-1).
On June 1, 1983, John and Carol Reinders asked Jeffrey and Kathleen to sign a promissory note for $30,000.00. (Exhibit 2). The note provided for repayment of the loan with interest at the rate of 9 per cent. Although the note called for monthly payments, it was a demand note. Jeffrey Reinders and his father each testified that this note was presented to Jeffrey and Kathleen on June 1, 1983 at the newly purchased home. Kathleen Reinders testified that although the note was signed June 1, 1983, it was signed at John and Carol Reinders' residence. The court finds that the promissory note to John and Carol Reinders was signed June 1, 1983 by Jeffrey and Kathleen Reinders after the May 31, 1983 sale closing and after the couple took possession of the property and had begun to occupy it as a home.
Kathleen says that the first time she was aware that they were borrowing $30,000.00 from her in-laws was when they presented her with the note on June 1. She did not object to the loan, and she signed the promissory note. When asked at trial why the promissory note was signed after the money was received, Jeffrey replied that the note had been signed "probably whenever we got around to it."
During most of their marriage, Kathleen had little to do with the family finances. The family's mail was delivered to a box at the post office located a block or two from where Jeffrey worked. Jeffrey picked up the mail and handled all of the family finances at his office.
During 1987, interest rates began to decline. Jeffrey and Kathleen tried to refinance their home with United Federal, but they were unable to do so. Jeffrey approached his father about obtaining a loan to pay off the United Federal mortgage. His father agreed to lend the necessary money. The funds were to come from an account owned by R & R Investments. R & R Investments was in the business of loaning money to custom livestock feeders. The business was financed by John Reinders, but was managed by Jeffrey. According to Jeffrey's records, John Reinders loaned him $32,000.00 from the investment account in April, 1987. (Exhibits 3-6). Most of the money was used to pay off the balance on the United Federal mortgage; some was used for further remodeling work on the younger couple's home. There was no paperwork to document the loan transaction. Jeffrey testified that he gave his father either the "title" or the abstract when he received it from the bank after paying off the mortgage. Jeffrey said he believed that this would constitute his father's "hold" on the property as it could not be sold without the documents which he had given to his father. Jeffrey and John Reinders each testified that the $32,000.00 was not a gift. Jeffrey and Kathleen continued to make monthly payments after the second loan was made, but the interest they paid annually never amounted to the full 9 per cent required by the original 1983 note. Despite receiving payments which did not keep the loan current, the parents made no effort to collect the debt or to enforce their rights until the time of their son's divorce.
The first time Kathleen learned of plans for the second family loan was during Christmas dinner of the preceding year when she overheard her husband and father-in-law discussing finances. Jeffrey testified that Kathleen knew of the plans to borrow money from his father because she knew of the plans to remodel the home and because she knew he had had the home appraised for refinancing.
Jeffrey and Kathleen were in financial difficulty by 1987. Sometime in 1987 or 1988, Jeffrey came to Kathleen with unpaid bills and their checking account book, told her they were in serious financial trouble, and asked her to see if she could straighten out their problems. At that point, Kathleen began writing the checks. Several of *940 the checks she wrote were for the monthly payments to John and Carol Reinders. Payments were made to the parents until November, 1989.
Jeffrey and Kathleen eventually separated, and Kathleen filed for divorce in the District Court for Sioux County. The dissolution proceeding went to trial May 14-16, 1991 and was heard by the Honorable Dewie J. Gaul. John and Carol Reinders joined in the action as intervenors to protect their interests as creditors. Kathleen did not object to the intervention.
Several days before the dissolution trial, on May 7, 1991, Jeffrey Reinders executed a real estate mortgage on the homestead to his mother and father. (Exhibit A-3). The mortgage listed $49,000.00 as the consideration thereof. The mortgage was recorded in Sioux County on May 20, 1991.
Judge Gaul issued his decision dissolving the couple's marriage on May 23, 1991. He provided for joint custody of the couple's two minor children but awarded Kathleen their physical care. Kathleen was given the right to occupy the homestead until either no child resided with her or Jeffrey's child support obligation ceased, whichever came first. When the right of occupancy terminated, the home was to be sold. The dissolution decree required Jeffrey to hold Kathleen harmless from any obligation to his parents. The court found that there remained due to the parents, by virtue of the two loans, the sum of $54,532.00  $27,800.00 from the initial loan, and $26,732.00 from the later loan.
Although the court determined that the parties had not taken sufficient steps to provide the parents with an equitable lien in the homestead, it considered that it would be inequitable to allow the sale of the homestead "without requiring that its proceeds be applied on the loans undoubtedly made in relation to it by [John and Carol Reinders]." (Exhibit 1, page 8.) Judge Gaul found not only that the couple had borrowed the initial $30,000.00 from the parents for the home, but that Kathleen knew the United Federal mortgage had been paid off and that the money had come from Jeffrey's parents. (Exhibit 1, page 7).
Under the decree, John and Carol Reinders were granted a lien on the homestead in the amount of the debt plus interest but they were prohibited from enforcing the lien until Kathleen's right of occupancy terminated. When, upon the termination of Kathleen's right of occupancy the home was sold, the proceeds of sale were to be used to pay the costs of sale and to satisfy the lien. The balance, if any, was to be divided between Jeffrey and Kathleen. No appeal from the decree has yet been taken, but there is pending a post-trial motion by Kathleen asking the court to reconsider ownership and division of some of the household furnishings. Kathleen Reinders filed for bankruptcy on October 7, 1991. She claims her interest in the home as exempt and seeks to avoid the lien established by the decree. Jeffrey, John and Carol Reinders have objected to the claim of exemption and to her motion to avoid the lien.

DISCUSSION

I.
In objecting to the homestead exemption and in resisting the motion to avoid lien, Jeffrey, John and Carol Reinders make three arguments: (1) that the state court decree establishing the lien and providing for the sale of the home and the payment of the lien is pursuant to a "special declaration of statute" contrary to the homestead exemption; (2) the $30,000.00 loan used for the initial purchase of the home is a debt antecedent to the acquisition of the property as a homestead and thus under Iowa Code § 561.21(1) the homestead is liable to satisfy it; and (3) the second loan was used to pay off a purchase money loan so that the lenders succeeded to the non-avoidable purchase money lien rights of the mortgagee bank.
At the close of the creditors' case, Kathleen moved for "directed verdict" on the issue of the debtor's claim of exemption. She contends that under principles of contract law, the oral loan agreement was merged into the promissory note dated *941 June 1, 1983. Because the couple acquired the homestead prior to June 1, Kathleen argues that the home is exempt from the post-acquisition indebtedness. She further contends that since the home is exempt from each of the post-acquisition debts, the lien granted by the decree may be avoided pursuant to 11 U.S.C. § 522(f)(1). That section of the Bankruptcy Code provides:
[T]he debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled . . ., if such lien is  . . . a judicial lien. . . .
The court, having considered the arguments, concludes that Kathleen Reinders may not claim her interest in the homestead exempt from the claims of John and Carol Reinders because the state court decree establishing their claim was entered pursuant to a statute inimical to the claim of homestead. Since the debtor's interest in the property may not be claimed as exempt from the judicial sale ordered by the dissolution decree, the lien awarded by the decree may not be avoided under § 522(f)(1).

II.
The court's first concern is whether it has before it a justiciable controversy. In the dissolution proceeding, there is presently pending a post-trial motion under Iowa R.Civ.P. 179(b). The parties have considered that that matter is stayed by the filing of the bankruptcy. The motion requested the trial court to enlarge or amend its findings of fact and conclusions of law concerning the ownership and disposition of several pieces of furniture. The 179(b) motion made no mention of the homestead. While this motion is pending, the district court decree in the Reinders' dissolution is not final for purposes of appeal. Iowa R.App.P. 5(a). If the district court's decision to impose a lien on the homestead is appealed and reversed, the motion to avoid the lien would be moot. However, that would not relieve the bankruptcy court from its responsibility to determine whether Kathleen's interest in the homestead would be exempt from the claims of John and Carol Reinders.
The issue of whether a judgment has become final is determined by the law of the rendering forum. In re Levitt, 18 B.R. 595, 598 n. 11 (Bankr.E.D.Pa.1982). The Iowa Supreme Court has stated that "[t]he purpose of a Rule 179(b) motion is to give trial court an opportunity to enlarge its findings of fact and conclusions of law and, if need be, modify the judgment or substitute the judgment with a new one. Iowa R.Civ.P. 179(b)." Robco Transp. Co., Inc. v. Ritter, 356 N.W.2d 497, 500 (Iowa 1984). Despite this, an Iowa district court entertaining a 179(b) motion is not free to consider issues and arguments not raised within the originally filed 179(b) motion. Graber v. Dist. Court for Washington Cty., 410 N.W.2d 224, 229 (Iowa 1987) ("We have held that a late-filed amendment to a posttrial motion cannot be considered unless the ground asserted is germane to a ground in the original timely motion." Julian v. City of Cedar Rapids, 271 N.W.2d 707, 708 (Iowa 1978) (citing In re Dvorak, 213 Iowa 250, 236 N.W. 66 (1931))). The 179(b) motion in the Reinders' case deals with the division of furniture between debtor and her former spouse. It in no way impacts upon the homestead. Although the divorce decree rendered by Judge Gaul is not final for purposes of appeal to the Iowa Supreme Court, the disposition of the homestead as between the two parties and the equitable creation of a lien thereon for the benefit of John and Carol Reinders is final and would not be changed by Judge Gaul in his response to debtor's 179(b) motion.
After Judge Gaul disposes of the 179(b) motion, debtor's divorce decree proceedings may be far from over. Contrary to statement of the elder Reinders' counsel at trial, debtor's failure to raise the homestead issue in her 179(b) motion will not prevent the issue from being raised on appeal. A rule 179(b) motion is a prerequisite to an appeal only if the trial court failed to resolve a properly submitted issue. West Branch State Bank v. Gates, 477 N.W.2d 848, 852 (Iowa 1991), citing *942 Estate of Grossman v. McCreary, 373 N.W.2d 113, 114 (Iowa 1985). Under Iowa law, a judgment is considered final for all purposes "until set aside on appeal." In re Lee's Estate, 240 Iowa 691, 37 N.W.2d 296, 299 (1949). Given such finality and because this court must, in any event, decide the exemption issue, the dispute over the state court dissolution decree presents a controversy which may and should now be decided.

III.
Debtor has claimed the Ireton property as an exempt homestead under Iowa Code § 561.16 and 11 U.S.C. § 522(b)(2)(A). Section 522(f)(1) of the Bankruptcy Code permits the debtor to avoid certain liens which impair debtor's exemptions; it states in pertinent part that
(f) Notwithstanding any waiver of exemptions, the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under section (b) of this section, if such lien is  . . . a judicial lien. . . .
What constitutes a "judicial lien" is a question of federal law. Boyd v. Robinson, 741 F.2d 1112, 1115 (8th Cir.1984). The lien granted to John and Carol Reinders by the state court is a judicial lien within the meaning of 11 U.S.C. § 101(36). The dispute in this case centers on whether the lien impairs an exemption to which the debtor would have been entitled under state law in the absence of the lien.
The statute upon which debtor's claim is based is § 561.16 of the Iowa Code:
The homestead of every person is exempt from judicial sale where there is no special declaration of statute to the contrary. . . .
The Iowa Supreme Court has long recognized that Iowa Code § 598.21, the statute which grants Iowa courts the power to make an equitable distribution of property in a divorce proceeding, "is a `special declaration of statute' which makes the homestead laws ineffective to bar judicial sale or other disposition of the homestead in adjusting the parties property rights." Kobriger v. Winter, 263 N.W.2d 892, 894 (Iowa 1978); In re Marriage of Tierney, 263 N.W.2d 533, 534 (Iowa 1978). Judge Gaul ordered sale of debtor's homestead, the payment of the debt to the parents from the sales proceeds, and the imposition of the lien by his authority under Iowa Code § 598.21. The bankruptcy court will not decide whether Judge Gaul's decree was a proper exercise of his authority under § 598.21. If debtor considers the state court decree improper in that regard, she still has available her right to appeal. I conclude only that the debtor may not claim the homestead as exempt in the face of the state court decree, because § 598.21 creates an exception to the statutory prohibition against judicial sales of homesteads.
I do not believe that a different result is required by the Supreme Court's recent decision in Owen v. Owen, ___ U.S. ___, 111 S.Ct. 1833, 114 L.Ed.2d 350 (1991). In Owen, the court held that a judicial lien could be avoided under § 522(f)(1) even though a state had defined the exempt property in such a way as to exclude the portion of the property encumbered by a lien. Id. 111 S.Ct. at 1838. Now, in applying § 522(f), bankruptcy courts must ask whether a lien impairs an exemption to which the debtor would have been entitled in the absence of the lien. Id. at 1836-37.
Certainly in this case, the Reinders' lien impairs Kathleen's claim of exemption. But even absent the lien, Kathleen would not be entitled to claim the homestead exempt from the sale ordered by Judge Gaul. Kathleen Reinders' homestead is not exempt from judicial sale not because of the lien, but because the state court has statutory authority to order it sold in a dissolution proceeding. The lien granted to the parents was certainly an impairment, but it was not the lien which destroyed the exemption. It is the state court's authority to order sale under Iowa Code § 598.21 which prevents the exemption.
I conclude that Kathleen Reinders' interest in the homestead is not exempt from the claim of John and Carol Reinders. I further conclude that the debtor, Kathleen *943 Reinders, may not avoid John and Carol Reinders' judicial lien in her homestead because the lien does not impair an exemption to which she would be entitled in the absence of the lien. Contra In re Conyers, 129 B.R. 470 (Bankr.E.D.Ky.1991), see Matter of Macke, 136 B.R. 209, 210 (Bankr. S.D.Iowa 1992).
Having determined that the lien is not avoidable on the foregoing grounds, the court does not reach the other arguments raised by the debtor and her creditors.

ORDER
IT IS ORDERED that debtor's motion for directed verdict is denied.
IT IS ORDERED that creditors' objections to debtor's claim of exemption to the homestead is sustained.
IT IS ORDERED that debtor's motion to avoid creditors' lien in her interest in the real property is denied. Judgment shall enter accordingly.
SO ORDERED.
NOTES
[1]  This case also had involved objections to debtor's exemption of household goods. Those objections have been orally withdrawn.


481 F.2d 188
John Carl ENGLISH, Appellee,v.VIRGINIA PROBATION & PAROLE BOARD, Appellant.
No. 72-1710.
United States Court of Appeals,Fourth Circuit.
Argued Feb. 6, 1973.Decided June 19, 1973.

Robert E. Shepherd, Jr., Asst. Atty. Gen. of Virginia (Andrew P. Miller, Atty. Gen of Virginia, on brief), for appellant.
Richard E. Crouch, Arlington, Va.  (Philip J. Hirschkop, Alexandria, Va., T. David Thelen, Staff Counsel, American Civil Liberties Union of Virginia Foundation, Richmond, Va., and Prof. Harvey E. Bines, Charlottesville, Va., on brief), for appellee.
Before BUTZNER and FIELD, Circuit Judges, and MURRAY, District Judge.
FIELD, Circuit Judge:

1
On May 12, 1970, John Carl English was convicted in the Circuit Court of Virginia Beach, Virginia, upon an indictment which charged that on or about January 13, 1970, he did "unlawfully, wilfully and feloniously maintain or keep a common nuisance, to-wit; a dwelling house or building resorted to by narcotic drug addicts, for the purpose of using narcotic drugs and/or which is used for the illegal keeping or selling of the same" in violation of Section 54-509 of the Code of Virginia (1950), as amended.1  The Supreme Court of Appeals of Virginia refused to grant a writ of error and certiorari was denied by the United States Supreme Court by order of June 7, 1971.

2
Thereafter, English filed a complaint in the district court in which he challenged the constitutionality of the Virginia statute under which he had been convicted and asked that the court enter a judgment declaring Section 54-509 unconstitutional and, additionally, prayed for habeas corpus relief.  Treating the case solely as one for habeas corpus relief, the district court, 341 F. Supp. 714, concluded that Section 54-509 was violative of the due process clause of the Fourteenth Amendment, granted petitioner's motion for summary judgment and ordered that he be released from custody.2  Incident to his disposition of the case the district judge also held that the classification of marijuana as a narcotic drug in the definitional statute, Virginia Code Section 54-487 (14), contravened the equal protection clause of the Fourteenth Amendment.  We disagree with the district court's conclusions in both respects and reverse.

3
Section 54-509 became a part of the statutory law of Virginia in 1934 when the Virginia General Assembly enacted the Uniform Narcotic Drug Act.  It was taken verbatim from Section 13 of the Uniform Act and read as follows:

4
"Common Nuisances.-Any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever, which is resorted to by narcotic drug addicts for the purpose of using narcotic drugs or which is used for the illegal keeping or selling of the same, shall be deemed a common nuisance.  No person shall keep or maintain such a common nuisance."

5
The Uniform Act which was proposed by the Commissioners on Uniform Laws was adopted with some local modifications in every state except California and Pennsylvania, and also was enacted in the District of Columbia, Puerto Rico and the Virgin Islands.  Although the Uniform Act was in almost nationwide effect for three decades there appear to have been only two reported cases dealing with Section 13, the common nuisance section.  Both of these cases were in the District of Columbia and both upheld convictions under the statutory section in question.  United States v. Williams, 93 U.S.App.D.C. 120, 210 F.2d 687 (1953), Gantt v. United States, 267 A.2d 350 (D.C.Ct. of App.1970).  It is of some significance that in neither of these cases was there any constitutional challenge to the statute.

6
In holding the statute to be unconstitutionally vague, the district judge referred to Connally v. General Const. Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926), for the proposition that a crime, and the elements constituting it, must be so clearly expressed in a statute that the ordinary person can intelligently choose in advance the course which it is lawful for him to pursue.  He then focused upon the words and phrases "any place whatever", "resorted to", "keeping" and "keeping or maintaining", and concluded that they are open to such a wide and ambiguous range of construction that the statute was constitutionally unacceptable.  In this critical scrutiny and analysis of the statutory phraseology, the district court ignored the fact that such language has acquired a well-defined meaning through the years with respect to common nuisances under both the common law and statutory enactments.  The classic language which appears in the statute was long ago analyzed and defined in State v. Main, 31 Conn. 572 (1863) with respect to a party who "did unlawfully keep and maintain * * * a house of bawdry and illfame," and in Commonwealth v. Kimball, 104 Mass. 465 (1870), involving a charge of "keeping and maintaining a tenement in Lynn as a liquor nuisance."  In Commonwealth v. Patterson, 138 Mass. 498 (1884), Mr. Justice Holmes, then a Justice of the Supreme Judicial Court of Massachusetts, recognized that such phraselogy had acquired a well-defined meaning, stating:

7
"A building cannot be said to be 'used' for the illegal sale of intoxicating liquors, within the meaning of the Pub.Sts. c. 101, Sec. 6, which makes it a nuisance, nor can the proprietor be said to "keep or maintain such common nuisance' within Sec. 7, on the strength of a single casual sale, made without premeditation, in the course of a lawful business.  Not only do the words 'used' and 'keep and maintain' import a certain degree of permanence, but the same idea is usually a part of the conception of a nuisance."

8
While, of course, the statutes considered in these somewhat venerable cases were directed at activities less sophisticated than the twentieth century use of narcotics, this change in the subject matter does not render the operative phraseology either vague or ambiguous.3  The Court in Connally, supra, stated:

9
"[I]t will be enough for present purposes to say generally that the decisions of the court upholding statutes as sufficiently certain rested upon the conclusion that they employed words or phrases having * * * a well-settled common law meaning, notwith-standing an element of degree in the definition as to which estimates might differ." 269 U.S. at 391, 46 S.Ct. at 127.

10
In our opinion the language of the statute under consideration which was seized upon by the district court as unconstitutionally vague has a well-settled meaning in the law and passes muster under the Fourteenth Amendment.

11
The district court also noted that the statute failed to specify whether intent or scienter was necessary to sustain a conviction thereunder, and observed that conceivably a party could be convicted without knowledge on his part that narcotics were being used on his premises.  The answer to this criticism is that the Virginia trial courts have construed the statute to require scienter and that the indictment in the present case charged that English "did unlawfully, wilfully and feloniously maintain or keep a common nuisance" (emphasis added).  Additionally, it would appear that scienter has long been recognized as an integral element of a criminal offense under the law of common nuisances. See State v. Main and Commonwealth v. Kimball, supra.

12
As heretofore stated, the district court also held that the legislative classification of marijuana as a narcotic drug in Section 54-487(14) was violative of the Equal Protection Clause.4  In so holding, the court stated that the statute classified marijuana as addictive5 "although this is contradictory to the vast weight of medical authority on the subject which holds that it is not addictive and common knowledge of this fact is well established."  No evidence was presented on this subject6 but the district judge concluded that he had the authority to rely upon the "current writing of authorities" in this field.  A number of the articles and reports relied upon by the district court are listed in the footnotes of his opinion.7  Nevertheless, controversy does exist with respect to marijuana, and reliance on the writings cited by the district court was not an appropriate basis for decision.

13
It is axiomatic that a legislature is free to adopt any classification it deems appropriate to promote the general welfare so long as the classification bears a reasonable relation to a proper legislative purpose.  The breadth of legislative discretion and authority and the deference to be accorded to the rationality of legislative classification was recognized in McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961).  Speaking for the Court in that case, Chief Justice Warren stated:

14
"The standards under which this proposition is to be evaluated have been set forth many times by this Court.  Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others."

15
This language in McGowan recognized the oft stated principle that "[a] statutory discrimination will not be set aside as the denial of equal protection of the laws if any state of facts reasonably may be conceived to justify it."  Metropolitan Co. v. Brownell, 294 U.S. 580, 584, 55 S.Ct. 538, 540, 79 L.Ed. 1070 (1935).  We think it to be beyond question that the objectives of the Uniform Narcotic Drug Act fall well within the framework of the standard enunciated in Jacobson v. Massachusetts, 197 U.S. 11, 31, 25 S.Ct. 358, 363, 49 L.Ed. 643 (1905):

16
"If there is any such power in the judiciary to review legislative action in respect of a matter affecting the general welfare, it can only be when that which the legislature has done comes within the rule that if a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution."

17
Finally, we note that the courts which have had occasion to deal with the question have almost uniformly upheld the constitutionality of the classification of marijuana as a "narcotic drug."  People v. McKenzie, 169 Colo. 521, 458 P.2d 232 (1969); Commonwealth v. Leis, 355 Mass. 189, 243 N.E.2d 898 (1969); People v. Stark, 157 Colo. 59, 400 P.2d 923 (1965); People v. Glaser, 238 Cal.App. 2d 819, 48 Cal.Rptr. 427 (Dist.Ct.App. 1965), cert. denied 385 U.S. 880, 87 S.Ct. 164, 17 L.Ed.2d 107 (1966); Gonzales v. State, 168 Tex.Crim. 49, 323 S.W.2d 55 (1959); State v. Navaro, 83 Utah 6, 26 P.2d 955 (1933).  The foregoing cases are among those collated in one of the articles cited in the opinion of the district court, Bonnie & Whitehead, The Forbidden Fruit and The Tree of Knowledge: An Inquiry Into the Legal History of American Marijuana Prohibition, 56 Va.L.Rev. 971 (1970).  In this exhaustive and somewhat critical review of the marijuana problem, the authors state: "We conclude that there is not yet sufficient uniformity of medical opinion to overcome any presumption of rationality attaching to marijuana legislation.  Those courts directly confronting the issue have responded correctly, regardless of the precise constitutional framework within which they have worked."  (p. 1133) Assuredly, the legislative classification here in question was not so arbitrary and unreasonable as to deny English the equal protection of the law.

18
Concluding as we do that the district judge erred in holding the Virginia statute unconstitutional, the order granting habeas corpus relief to English is reversed.

19
Reversed.

1
 The Uniform Narcotics Drug Act, including Section 54-509, was repealed in 1970 when the General Assembly of Virginia enacted the Drug Control Act

2
 The complaint designated the Attorney General, the Director of Corrections, and the Superintendent of the Virginia State Penitentiary as parties defendant.  However, English had already been released on parole when the opinion of the district court was filed, and an order was entered substituting the members of the Virginia Probation and Parole Board as respondents

3
 It is interesting to note that similar language was used in the common nuisance section of the Volstead Act.  National Prohibition Act, October 28, 1919, c. 85, Title II, Section 21; 41 Stat. 314.  See United States v. Dowling, 278 F. 630 (S.D.Fla.1922)

4
 This section which also adopted the language of the Uniform Act read as follows:
"'Narcotic drugs' mean coca leaves and opium, cannabis and isonipecaine and every substance not chemically distinguishable from them."

5
 The statute does not, in fact, classify marijuana as addictive; it merely includes it in the classification of "narcotic druges."

6
 Summary disposition of the case by the district court was based only upon the complaint, the answer and exhibits filed therewith

7
 See English v. Miller, 341 F.Supp. 714, 717, nn. 2 & 3 (E.D.Va.1972)


The State of Texas                                 From the 251st District Court
 Appellant                                          Of Randall County
v. No. 07-10-00520-CR                              May 20, 2011
David Neal Duncan                                  Opinion by Justice Hancock
 Appellee

                                    JUDGMENT

      Pursuant to the opinion of the Court, it is ordered, adjudged and decreed that this

appeal is dismissed.

      It is further ordered, adjudged and decreed that appellant pay all costs

occasioned by this appeal, except for appellee’s attorney fees, which are adjudged

against appellee. Tex. Code Crim. Proc Ann. art. 44.01(f) (West Supp. 2010).

      It is further ordered, adjudged and decreed that inasmuch as the appeal is

dismissed at the appellant’s request, no motion for rehearing will be entertained, and

our mandate will issue forthwith.

      It is further ordered that this decision be certified below for observance.

                                          oOo


40 S.W.3d 342 (2001)
73 Ark.App. 194
J.R.
v.
STATE of Arkansas.
No. CA 00-885.
Court of Appeals of Arkansas, Division IV.
April 4, 2001.
Robert D. Klock, Bentonville, for appellant.
Mark Pryor, Att'y Gen., by: Jeffrey A. Weber, Ass't Att'y Gen., Little Rock, for appellee.
JOHN B. ROBBINS, Judge.
Appellant J.R. was adjudicated a delinquent after the trial court found that he committed possession of a controlled substance (methamphetamine) with intent to deliver. At the time of the alleged offense, he was fifteen years old. For his sole argument on appeal, J.R. argues that the trial court's decision was not supported by substantial evidence. We find no error and affirm.
In reviewing a juvenile-delinquency case, we look at the record in the light most favorable to the State to determine whether there is substantial evidence to support the conviction. K.M. v. State, 335 Ark. 85, 983 S.W.2d 93 (1998). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without mere speculation or conjecture. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999).
*343 Officer Ronnie Boyd testified on behalf of the State. He stated that he was patrolling on the evening of January 5, 2000, when he saw a pickup truck run a red light. Officer Boyd stopped the truck and found that J.R. was driving but could not produce a driver's license. Officer Boyd asked J.R. to exit the vehicle. J.R. complied and identified himself.
Officer Boyd observed an adult passenger, Lamberto Gonzales, sitting in the passenger's seat of the truck. When he opened the door to speak with Mr. Gonzales, Mr. Gonzales made a quick turn toward the middle of the seat. Officer Boyd then removed him from the truck, and Mr. Gonzales continued to act suspiciously by turning away from the officer as if to shield something from him. Soon thereafter, Officer Kenny Fitch arrived with a drug dog. The dog indicated that there were controlled substances in the vehicle, and after a search Officer Fitch advised Officer Boyd that he found a quantity of suspected methamphetamine. According to Officer Boyd, he then placed J.R. under arrest, but before notifying him of the reason for the arrest or that they had found suspected drugs, J.R. stated that "the stuff in the vehicle was not his." Mr. Gonzales was also arrested, and during a search of his person the police found marijuana.
Officer Fitch testified that, during his search of the truck, he found a rock in a plastic baggie that was later determined to weigh 12.266 grams and contain methamphetamine. The rock was underneath a shirt or a towel and was found on the floorboard. Officer Fitch stated that its location on the floorboard was where the driver's right foot would be if it were not on the gas pedal, that it was accessible to the driver, and that "the passenger would have to have scooted over to reach it."
J.R. testified on his own behalf, and he stated that he knew Mr. Gonzales had marijuana on his person at the time he was stopped by Officer Boyd. However, J.R. denied having any knowledge of the methamphetamine. He testified that, when he told Officer Boyd that the stuff in the vehicle was not his, he was talking about the marijuana.
For reversal, J.R. argues that substantial evidence did not support the trial court's finding that he possessed the methamphetamine. He notes that it was the behavior of Mr. Gonzales that made Officer Boyd suspicious, in that Mr. Gonzales appeared to be concealing something during the stop. J.R. further points out that, as Officer Boyd's testimony indicated, he did not exhibit suspicious behavior and was cooperative. Although J.R. informed Officer Boyd that the "stuff in the car" was not his, he explained in his testimony that he was referring to the marijuana and was not aware that there was methamphetamine in the truck. Under these circumstances, J.R. submits that it was more likely that Mr. Gonzales possessed the methamphetamine, and thus urges us to reverse his delinquency adjudication.
The State argues that J.R.'s challenge to the sufficiency of the evidence is not preserved for review because he failed to move for dismissal at the close of the evidence pursuant to Ark. R.Crim. P. 33.1(b). We agree. Rule 33.1(b) provides:
In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all of the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution's evidence, then the motion must be renewed at the close of all of the evidence.
Pursuant to Rule 33.1(c), a defendant's failure to make a timely motion for dismissal *344 constitutes a waiver of any question pertaining to the sufficiency of the evidence. The rules of criminal procedure are applicable in juvenile-delinquency proceedings. Ark.Code Ann. § 9-27-325 (Repl.1998); Trammell v. State, 70 Ark. App. 210,16 S.W.3d 564 (2000).
In the instant case, J.R. did not move for dismissal at the close of the evidence. Rather, he made his motion as part of and during his closing argument, after the State gave its closing argument. Thus his motion was untimely. See generally Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997). J.R.'s failure to make a timely motion for dismissal precludes our review of his sufficiency argument on appeal.
We note that, even if J.R.'s sufficiency argument had been properly preserved for review, it would have been of no avail. While joint occupancy of a vehicle is not alone sufficient to establish possession, and additional factors are necessary, Miller v. State, 68 Ark.App. 332, 6 S.W.3d 812 (1999), in this case there were additional factors to link J.R. with the contraband. These included close proximity and accessibility to the methamphetamine, the fact that J.R. was driving the truck, and the fact that he told the officer "the stuff was not his," indicating guilty knowledge of its presence. The State presented substantial evidence that J.R. was in possession of the contraband.
Affirmed.
BIRD and ROAF, JJ., agree.


               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 45843

ZACKERY DOUGLAS ADAMS,                         )
                                               )     Filed: March 7, 2019
       Petitioner-Appellant,                   )
                                               )     Karel A. Lehrman, Clerk
v.                                             )
                                               )     THIS IS AN UNPUBLISHED
STATE OF IDAHO,                                )     OPINION AND SHALL NOT
                                               )     BE CITED AS AUTHORITY
       Respondent.                             )
                                               )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Peter G. Barton, District Judge.

       Judgment of the district court summarily dismissing petition for post-conviction
       relief, affirmed.

       Fyffe Law; Robyn Fyffe, Boise, for appellant.

       Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
       Attorney General, Boise, for respondent.
                 ________________________________________________

GRATTON, Chief Judge
       Zackery Douglas Adams appeals from the district court’s judgment dismissing his
petition for post-conviction relief. Adams challenges the district court’s order granting the
State’s motion for summary dismissal of his petition. For the reasons set forth below, we affirm.
                                                I.
                     FACTUAL AND PROCEDURAL BACKGROUND
       In 2016, pursuant to a plea agreement, Adams pled guilty to grand theft, Idaho Code
§§ 18-2403(1), 18-2407(1)(b), 18-2409, and unlawful possession of a firearm, I.C. § 18-3316.
The district court sentenced Adams to a unified term of fourteen years with eight years
determinate for grand theft and a consecutive indeterminate term of five years for unlawful
possession of a firearm.   Adams filed a direct appeal arguing that the district court erred in
imposing his sentence and awarding restitution. In an unpublished opinion, this Court affirmed

                                                1
Adams’ judgment of conviction and sentences and the judgment of restitution. State v. Adams,
Docket No. 44216, (Ct. App. March 27, 2017).
       In 2017, Adams filed a pro se petition for post-conviction relief raising numerous claims.
Adams’ petition consisted of three pages of allegations, a declaration, and a signature line that
was unsigned. Some allegations in the petition were supported by a two-page handwritten
affidavit of facts signed by Adams. Thereafter, Adams was appointed post-conviction counsel
and appointed counsel did not amend Adams’ petition. As relevant to his claim on appeal,
Adams alleged that his trial counsel was ineffective for failing to raise a double jeopardy
challenge, for informing him that “there was no type of ‘insanity defense’ in the State of Idaho,”
and for informing him that “the State did not have to prove ‘intent’ to commit a crime” therefore
Adams had “no defense to the crimes charged, and he should plead guilty.”
       The State filed a motion for summary dismissal arguing that the petition should be
dismissed because (1) it was not verified, and (2) Adams failed to present genuine issues of
material fact entitling him to an evidentiary hearing. Adams filed a memorandum in opposition
to the State’s motion for summary dismissal but did not address the State’s claim that the petition
was not verified and did not provide a notarized signature. After a hearing on the motion, the
district court summarily dismissed Adams’ petition on both independent grounds presented by
the State. Adams timely appeals.
                                                II.
                                           ANALYSIS
       Adams argues that the district court erred in summarily dismissing his petition for
post-conviction relief because (1) his petition was effectively verified by the signature on the
affidavit of facts, and (2) his claims presented genuine issue of material fact entitling him to an
evidentiary hearing. In response, the State argues that the district court was correct in summarily
dismissing Adams’ post-conviction claim on both grounds. Further, the State contends that
Adams’ appellate argument challenging the district court’s dismissal on the ground that the
petition was not verified is not preserved for appeal, and thus it should not be considered by this
Court. We agree with the State.
       Appellate court review is limited to the evidence, theories, and arguments that were
presented below. State v. Garcia-Rodriguez, 162 Idaho 271, 275, 396 P.3d 700, 704 (2017).
Here, the district court dismissed Adams’ petition for post-conviction relief on two independent

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grounds. First, the district court held that Adams’ petition for post-conviction relief was not
verified and Adams’ had not “promptly corrected” this error as challenged by the State. The
district court relied, in part, on Idaho Rule of Civil Procedure 11(a) which states that a pro se
petition “must be signed by . . . a party personally if the party is unrepresented” and requires the
court to “strike an unsigned paper unless the omission is promptly corrected after being called to
the attorney’s or party’s attention.” Second, the district court reviewed the merits of Adams’
claims and independently dismissed each claim for failing to raise genuine issues of material
fact.
        On appeal, Adams acknowledges that the State moved for summary dismissal “alleging
in part that the petition should be dismissed because it was not verified” and “[i]t is unknown
why post-conviction counsel did not amend the petition or take even the minimal step of
obtaining a notarized petition.” Nonetheless, Adams argues, for the first time on appeal, that the
“notarized affidavit” that was attached to the petition “should be construed as part of the
petition.” However, Adams was presented with ample opportunity to rebut the State’s allegation
that Adams’ petition for post-conviction relief was not verified. Adams could have responded to
the State’s argument in his answer to their motion for summary dismissal, and he could have
amended his petition. He failed to do so. Because Adams’ argument that his petition was
verified is brought for the first time on appeal, it is not properly preserved for this Court.
Garcia-Rodriguez, 162 Idaho at 275, 396 P.3d at 704. Consequently, we affirm the district
court’s dismissal of Adams’ petition for post-conviction relief on the grounds that it was not
verified. Because we affirm the district court on the first ground for dismissal, (i.e. that the
petition is unverified), we need not address Adams’ challenges to the second grounds for
dismissal. Andersen v. Professional Escrow Services, Inc., 141 Idaho 743, 745, 118 P.3d 75, 77
(2005). 1

1
        We note, however, that Adams’ double jeopardy claim is meritless, as the grand theft
charge was based on Adams’ taking the guns, not theft by possession. In addition, Adams’
ineffective assistance of counsel claims as to the intent element fail because (1) the record shows
that the court properly advised Adams of the intent element before his plea, and (2) Adams never
alleged that he would not have entered the plea, but instead would have gone to trial, had he been
adequately advised.
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                                           III.
                                      CONCLUSION
       The district court did not err in granting the State’s motion for summary dismissal.
Therefore, the judgment of the district court summarily dismissing Adams’ petition for
post-conviction relief is affirmed.
       Judge HUSKEY and Judge BRAILSFORD CONCUR.

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