State of Iowa v. Theodore W. Buselmeier ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0370
Filed December 15, 2021
STATE OF IOWA,
Plaintiff-Appellee,
vs.
THEODORE W. BUSELMEIER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Appanoose County, Rose Anne
Mefford, District Associate Judge (motion to suppress), and Lucy Gamon, Judge
(trial).
Theodore Buselmeier appeals his convictions for possession of a controlled
substance and possession of drug paraphernalia. AFFIRMED.
Theodore W. Buselmeier, self-represented appellant.
Thomas J. Miller, Attorney General, and Martha E. Trout and Israel
Kodiaga, Assistant Attorneys General, for appellee.
Heard by Greer, P.J., and Badding, J., and Carr, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206,
(2021).
2
BADDING, Judge.
On a cold December day, a conservation officer found Minnesota resident
Theodore Buselmeier standing in a creek in a wooded area clad in hunting gear.
The officer was investigating a tip from the “Turn in Poachers” (TIP) hotline that a
hunter the caller knew as “Ted from Minnesota” had harvested an antlered buck
deer. While investigating the tip, law enforcement officials discovered marijuana
and a glass pipe in Buselmeier’s vehicle. Buselmeier was charged with
possession of marijuana and drug paraphernalia. After his motion to suppress the
drug evidence was denied, a jury found Buselmeier guilty of both charges.
On appeal, Buselmeier challenges the denial of his motion to suppress,
arguing the TIP hotline call did not provide the officer with reasonable suspicion
for the investigative stop. He also argues the stop was impermissibly extended.
Failing the success of those issues, Buselmeier claims that there is insufficient
evidence to support his convictions and that the trial court erred in instructing the
jury on constructive possession. We find no merit in any of these issues and affirm
Buselmeier’s convictions.
I. Background Facts and Proceedings.
One day after the first shotgun deer season ended in December 2018, Iowa
Department of Natural Resources Conservation Officer Jacob Fulk received a
phone call on the TIP hotline. The caller told the officer that another hunter, who
he referred to as “Ted from Minnesota,” had asked for the caller’s help in removing
a buck deer he had killed from a field. The caller was unsure whether the non-
resident hunter had a license to kill a buck deer. The caller was also concerned
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that a silver pickup truck with a Minnesota license plate he had seen in the area
during the shotgun deer season remained in the area after the season concluded.
Armed with details about the hunter’s vehicle and location, Officer Fulk and
Iowa State Patrol Trooper Clayton Daniels followed the caller’s directions and
located the silver pickup truck with a Minnesota license plate. They entered the
nearby field and headed in the direction the caller believed the buck deer to be.
After walking for a bit, the officers stopped at a muddy deer stand to regroup when
they heard a man’s voice talking on a cell phone from a nearby creek bed. They
followed the voice and found Buselmeier, a Minnesota resident, wearing hunting
gear and standing in the creek. Buselmeier, who was by himself, claimed he was
looking for a doe that he had shot the day before. Officer Fulk recognized
Buselmeier from an encounter earlier in the week during which he checked
Buselmeier’s licensing. From that prior encounter, the officer knew that
Buselmeier had a non-resident hunting license and had paid the non-resident
habitat fee but only had an antlerless doe tag for Appanoose County.
Trooper Daniels stayed with Buselmeier while Officer Fulk looked for the
buck. A few hundred yards from Buselmeier, Officer Fulk found a buck that was
field dressed and bore the tag of another hunter.1 According to Officer Fulk, field
dressing is a common practice among hunters when harvesting an animal that
involves removal of the animal’s internal organs to preserve the meat. The buck
appeared to the officer to be a “fresh” kill, with no evidence that wild animals had
disturbed it. When Officer Fulk returned and asked Buselmeier about the buck,
1Officer Fulk later learned the hunter whose tag was affixed to the buck’s antlers
had been in the hospital when the deer was tagged.
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Buselmeier refused to talk to him. Officer Fulk then noticed what appeared to be
blood on Buselmeier’s boots and pants.
The three returned to the area where their vehicles were parked. When
Officer Fulk told Buselmeier he wanted to seize Buselmeier’s clothing and cell
phone, Buselmeier told the officer that he would need a warrant. Although Officer
Fulk told Buselmeier he was not free to leave because he would be requesting that
warrant, Buselmeier got into his truck and drove away.
Officer Fulk pursued Buselmeier in his patrol car. When Buselmeier finally
stopped, the officer noticed that the truck’s floorboard and Buselmeier’s boots were
wet. Officer Fulk believed Buselmeier had dumped liquid onto his boots to try to
rid them of blood. He placed Buselmeier under arrest and seized his vehicle,
boots, and clothing.
After obtaining a warrant, law enforcement officers searched Buselmeier’s
truck. In a hip pack inside a backpack on the truck’s rear passenger-side seat,
they found a tan, waxy substance in a container that testing showed was marijuana
concentrate. They also found a plastic bag of green, leafy material that testing
confirmed to be marijuana, along with a glass pipe that smelled like marijuana.
The State charged Buselmeier with possession of a controlled substance
and possession of drug paraphernalia. Buselmeier moved to suppress the
evidence discovered in his vehicle, which the district court denied. Following trial,
a jury found Buselmeier guilty of both charges. Buselmeier appeals.
II. Motion to Suppress.
Buselmeier challenges the denial of his motion to suppress the evidence
seized from his truck. He contends that Officer Fulk did not have reasonable
5
suspicion to make an initial investigative stop and that he unreasonably prolonged
the stop. Because information obtained during that stop was used to get the
warrant to search his vehicle, Buselmeier argues the evidence found during that
search is “fruit of the poisonous tree” and must be excluded.
We review the denial of a motion to suppress alleging a constitutional
violation de novo. See State v. Haas, 930 N.W.2d 699, 701-02 (Iowa 2019). On
de novo review, the court considers the entire record and independently evaluates
the totality of the circumstances. See State v. Turner, 630 N.W.2d 601, 606 (Iowa
2001). “We give deference to the district court’s fact findings due to its opportunity
to assess the credibility of witnesses, but we are not bound by those findings.” Id.Both the state and federal constitution protect a person from unreasonable
searches and seizures.2 See U.S. Const. amend. IV; Iowa Const. art. I, § 8. A
warrantless search and seizure is per se unreasonable unless it falls under a
recognized exception to the warrant requirement. See Baker, 925 N.W.2d at 610.
One recognized exception allows an officer to briefly detain a person for
investigatory purposes. See id.
A. Whether the officer had reasonable suspicion for an investigative
stop.
To pass constitutional muster, an investigative stop must (1) be based on a
reasonable suspicion, backed by specific and articulable facts, that a criminal act
has occurred or is occurring and (2) be brief, lasting only long enough for law
enforcement to confirm or dispel that suspicion. See id. at 610-11. Reasonable
2Because Buselmeier does not advance a distinct analytical framework under our
parallel state constitutional provision, we apply the general federal framework. See
State v. Baker, 925 N.W.2d 602, 610 (Iowa 2019).
6
suspicion is more than mere suspicion or curiosity but “considerably less than proof
of wrongdoing by a preponderance of the evidence.” Id. (citation omitted).
Reasonable suspicion is a less demanding standard than probable
cause not only in the sense that reasonable suspicion can be
established with information that is different in quantity or content
than that required to establish probable cause, but also in the sense
that reasonable suspicion can arise from information that is less
reliable than that required to show probable cause.
Alabama v. White, 496 U.S. 325, 330 (1990). In determining the existence of
reasonable suspicion, the court must independently evaluate “the totality of the
circumstances as viewed by a reasonable and prudent person.” Id. (citation
omitted). The question is whether a preponderance of the evidence shows that
“the stopping officer had specific and articulable facts, which taken together with
rational inferences from those facts, [would lead one] to reasonably believe
criminal activity may have occurred.” State v. Tague, 676 N.W.2d 197, 204 (Iowa
2004).
In denying Buselmeier’s motion to suppress, the district court found Officer
Fulk had a reasonable suspicion that criminal activity was afoot based on the TIP
hotline call about illegal deer hunting. Buselmeier argues the call was insufficient
to provide reasonable suspicion based on Florida v. J.L., 529 U.S. 266, 268 (2000).
In J.L., the officer’s suspicion was based solely on a call made from an unknown
location by an unknown caller. 529 U.S. at 270. The Supreme Court held the
anonymous tip, which only described the appearance and location of a young man
the caller claimed was carrying a gun, did not provide reasonable suspicion
because it “lacked [a] moderate indicia of reliability.” Id. at 268, 271. The Court
distinguished the facts from those in Alabama v. White, which involved an
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anonymous tip that a woman carrying cocaine would leave a certain apartment
building at a specific time to drive a car matching a particular description to a
named hotel. See id. at 270 (citing White, 496 U.S. at 327). Although the tip in
White alone would not have justified an investigative stop, police corroborated it
by observing that the woman moved as the informant predicted, thus providing a
reason to believe the informant had inside knowledge and lending credence to the
informant’s claim she carried cocaine. See id. (citing White, 496 U.S. at 332). In
contrast, the informant in J.L. “provided no predictive information and therefore left
the police without means to test the informant’s knowledge or credibility.” Id. at
271. The Supreme Court emphasized that the accurate description of the
suspect’s appearance and location on its own was insufficient to provide
reasonable suspicion:
An accurate description of a subject’s readily observable
location and appearance is of course reliable in this limited sense: It
will help the police correctly identify the person whom the tipster
means to accuse. Such a tip, however, does not show that the tipster
has knowledge of concealed criminal activity. The reasonable
suspicion here at issue requires that a tip be reliable in its assertion
of illegality, not just in its tendency to identify a determinate person.
Id. at 272 (emphasis added).
There are important differences that distinguish this case from J.L. First,
although the identity of the caller in this case is not disclosed in the record, his
identity was not unknown as Officer Fulk later learned his full name and spoke with
him at least twice following the initial tip. See id. at 275 (Kennedy, J., concurring)
(“[A] tip might be anonymous in some sense yet have certain other features, either
supporting reliability or narrowing the likely class of informants, so that the tip does
provide the lawful basis for some police action.”); United States v. Hicks, 531 F.3d
8555, 559 (7th Cir. 2008) (“Courts, including our own, have distinguished J.L. when
the tipster gives her name or other identifying information to the 911 operator.”);
United States v. Brown, 496 F.3d 1070, 1075 (10th Cir. 2007) (distinguishing
unidentified 911 callers who provide enough distinctive characteristics to limit their
identity to only a handful of people from the “anonymous unrecorded and
undocumented telephone call” in J.L.). This differs from J.L., which involved “an
unknown, unaccountable informant.” 529 U.S. at 271.
Second, from the information the caller provided to Officer Fulk in that first
call, including the circumstances by which he obtained information about a
possible crime, it is clear the caller was a citizen informant—the type who is
generally presumed to be reliable. See State v. Walshire, 634 N.W.2d 625, 629
(Iowa 2001); State v. Niehaus, 452 N.W.2d 184, 189 (Iowa 1990) (stating the
presumption “that information imparted by a citizen informant is generally reliable”
but requiring “a common-sense analysis of the totality of the circumstances . . . to
assess its reliability”). In contrast to the anonymous tipster in J.L., the caller here
explained exactly how he knew about the possible criminal activity he was
reporting: he had been in direct communication with Buselmeier about moving the
dead buck deer. See Walshire, 634 N.W.2d at 629 (discussing cases
distinguishing J.L. on the same basis); see also State v. Drake, 224 N.W.2d 476,
478 (Iowa 1974) (noting the rule of prior reliability required for confidential
informants is considerably relaxed for citizen informants because “unlike the
professional informant, he is without motive to exaggerate, falsify or distort the
facts to serve his own ends”).
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Buselmeier emphasizes that the caller did not know for certain that a crime
had been committed and was instead just voicing a concern that something illegal
could be happening. But the caller also explained the reasons for his concern:
(1) Buselmeier contacted the caller to seek assistance retrieving a deer, which
indicated he had not been in a hunting party, (2) he provided the caller with a photo
of an antlered buck deer, and (3) Buselmeier remained in the area even though he
was not a resident of the state and the shotgun hunting season had ended. This
is significantly more information than the police were acting on in J.L., where the
anonymous caller “neither explained how he knew about the gun nor supplied any
basis for believing he had inside information about J.L.” 529 U.S. at 271 (2000).
And, unlike J.L., Officer Fulk corroborated more than just Buselmeier’s
location and appearance. The caller was unable to pronounce Buselmeier’s last
name but used the first name of “Ted” and described him as being from Minnesota.
He accurately described the location of Buselmeier’s silver pickup truck, which
bore Minnesota license plates. On finding Buselmeier in the approximate location
the caller identified, Officer Fulk recognized him from a prior interaction and knew
he had a non-resident license to hunt antlerless deer. Based on the caller’s report
that Buselmeier sought help removing the buck deer, Officer Fulk could reasonably
conclude that Buselmeier was not a member of a hunting party when he shot the
deer and therefore had no legal basis to do so.
Buselmeier complains that Officer Fulk failed to “negate the numerous legal
possibilities allowing for the alleged conduct.” But “reasonable cause may exist to
investigate conduct which is subject to a legitimate explanation and turns out to be
wholly lawful.” State v. Kreps, 650 N.W.2d 636, 642 (Iowa 2002) (citation omitted).
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Indeed, the “principal function of an investigatory stop is to resolve the ambiguity
as to whether criminal activity is afoot.” Id. (citation omitted). After reviewing state
and federal rulings examining what constitutes reasonable suspicion, our supreme
court observed in State v. Struve that “the officer’s suspicion need not be infallible
or even rise to a fifty-fifty chance the individual is engaged in criminal activity to be
reasonable.” 956 N.W.2d 90, 98 (Iowa 2021), reh’g denied (Apr. 6, 2021), petition
for cert. filed, 2021 WL 4122246 (U.S. Sept. 8, 2021) (No. 21-374).
Based on the information Officer Fulk learned from the caller and
independently corroborated, we agree he had a reasonable suspicion that
Buselmeier had illegally taken a buck deer, thereby justifying an investigative stop.
B. Whether the officer impermissibly extended the investigative stop.
Buselmeier next contends that even if Officer Fulk had a reasonable
suspicion for an investigative stop, he impermissibly extended the stop by having
him wait with the trooper while Officer Fulk looked for the buck deer.3 See id.(stating that once law enforcement “become[s] aware of additional facts that make
their suspicions of illegal activity unreasonable, the reasonableness of the initial
suspicion dissipates and they cannot make the stop”). He notes that when Officer
Fulk first initiated the stop, he saw that Buselmeier was unarmed and talking on
3 The State argues that Buselmeier failed to preserve error on this claim because
he raises a different argument on appeal than he raised below. In his motion to
suppress, Buselmeier claimed that Officer Fulk “impermissibly extended the stop
by pursuing the Defendant [in his vehicle] after the initial investigatory stop.”
(Emphasis added.) But on appeal, Buselmeier focuses on an earlier point in the
investigative stop—after the officer made initial contact with Buselmeier before
setting out to look for the buck deer—as the point when initial suspicion should
have dissipated. We elect to bypass this error preservation concern and proceed
to the merits. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999).
11
his cellphone with no blood on his hands or shirt. He claims these facts
“significantly undermined any reasonable suspicion that Buselmeier was illegally
hunting.”4
Whether the duration of a stop is reasonable “is determined by the seizure’s
‘mission,’ and law enforcement must be ‘reasonably diligent’ in carrying out that
mission.” United States v. Magallon, 984 F.3d 1263, 1278 (8th Cir. 2021) (quoting
Rodriguez v. United States, 575 U.S. 348, 354, 357 (2015)); see also State v.
McCoy, 692 N.W.2d 6, 18 (Iowa 2005). It must last no longer than is necessary to
effectuate its purpose, using the least intrusive investigative methods reasonably
available to verify or dispel the officer’s suspicion. See McCoy, 692 N.W.2d at 18.
“An officer’s suspicion of criminal activity may reasonably grow over the course of
a . . . stop as the circumstances unfold and more suspicious facts are uncovered.”
Magallon, 984 F.3d at 1278 (citation omitted). On those occasions “when the
mission is ongoing throughout law enforcement’s interactions with the suspects of
a stop, the stop will not be unreasonable when officers diligently pursue the
mission and do not cause measurable delay.” Id.
We have already determined that Officer Fulk had reasonable suspicion for
the initial investigative stop of Buselmeier. The mission of that stop was to
investigate illegal deer hunting. While Buselmeier was waiting by the creek, Officer
4 Buselmeier also argues that he provided a legal explanation for his presence in
the area by telling Officer Fulk he was looking for a doe he killed the day before.
But Officer Fulk did not have to accept that explanation. See Struve, 956 N.W.2d
at 104 (“[R]easonable suspicion does not require an officer to rule out all innocent
explanations. ‘The need to resolve ambiguous factual situations—ambiguous
because the observed conduct could be either lawful or unlawful—is a core reason
the Constitution permits investigative stops.’” (citation omitted)).
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Fulk was reasonably pursuing his mission by looking for the buck deer. Once he
located it, the caller’s version of events was confirmed—that Buselmeier was
looking for assistance in retrieving a buck deer. Based on its condition, Officer
Fulk concluded the buck deer had been killed recently. Officer Fulk then returned
to Buselmeier and noticed what appeared to be blood on Buselmeier’s boots and
pants.
These facts show that Officer Fulk was diligently pursuing the mission of the
stop while Buselmeier was detained, unlike cases that have found investigative
stops to have been unconstitutionally prolonged. See, e.g., In re Pardee, 872
N.W.2d 384, 391 (Iowa 2015) (finding an officer developed reasonable suspicion
of other criminal activity only by prolonging the initial stop beyond the time
reasonably necessary to execute the traffic violation warnings); accord Rodriguez,
575 U.S. at 354. We accordingly find reasonable suspicion existed to justify the
continued detention of Buselmeier by the creek while Officer Fulk attempted to
locate the deer.
C. Whether the application for the search warrant included evidence
obtained during an unconstitutional seizure.
Finally, Buselmeier contends the district court erred in denying his motion
to suppress because the warrant to search his vehicle was obtained with
information acquired during the unconstitutional investigatory stop. As we have
already determined that Officer Fulk had reasonable suspicion for the investigative
stop, this argument fails. See State v. Bergmann, 633 N.W.2d 328, 333 (Iowa
2001) (“The fruit of the poisonous tree doctrine bars evidence found in subsequent
searches only when the evidence was found by virtue of the first illegality.”).
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III. Admissibility of Drug Evidence.
Buselmeier next claims the “district court erred in admitting evidence of [his]
vehicle and the Department of Criminal Investigations (DCI) lab results because of
a deficient chain of custody.” The State counters that Buselmeier failed to preserve
error on his chain-of-custody claims because he never raised them to the trial
court. We agree.
At trial, Buselmeier lodged a general foundation objection to the admission
of the DCI lab report into evidence. When the trial court asked, “What is wrong
with the foundation?” Buselmeier responded, “It is not necessarily qualifications,
but scientific—the science on it. . . .” This did not alert the court to the chain-of-
custody deficiencies Buselmeier raises on appeal, specifically his contention that
the State failed “to account for continuous custody” of the vehicle and the drug
evidence recovered from the vehicle. See State v. Don, 318 N.W.2d 810, 805
(Iowa 1982) (finding a general objection to the foundation for an exhibit was
inadequate to preserve error on a chain-of-custody challenge).
Buselmeier is not saved by the chain-of-custody concerns raised in his
motion for judgment of acquittal. This is because a motion for judgment of acquittal
is a means for challenging the sufficiency of the evidence to support a conviction,
not its admissibility. See State v. Bentley, 757 N.W.2d 257, 262 (Iowa 2008).
Buselmeier is thus precluded from challenging the admissibility of this evidence on
appeal by arguing the State failed to establish chain of custody. See State v.
Dessinger, 958 N.W.2d 590, 598 (Iowa 2021) (“The preservation of error doctrine
is grounded in the idea that a specific objection to the admission of evidence be
14
made known, and that the trial court be given on opportunity to pass upon the
objection and correct any error.” (citation omitted)).
IV. Sufficiency of the Evidence.
Buselmeier also challenges the denial of his motion for judgment of
acquittal, arguing the State presented insufficient evidence to support his
convictions. We review this claim for correction of errors at law. See State v.
Evans, 671 N.W.2d 720, 724 (Iowa 2003). We uphold a verdict if it is supported
by substantial evidence. See State v. Warren, 955 N.W.2d 848, 856 (Iowa 2021).
Substantial evidence is evidence that would convince a rational person that the
defendant is guilty beyond a reasonable doubt. See id. In reviewing a challenge
to the sufficiency of the evidence, we view the evidence in the light most favorable
to the verdict, including any legitimate inferences and presumptions that can be
fairly and reasonably deduced from it. See id.In order for the jury to find Buselmeier guilty of possession of a controlled
substance, the jury was instructed that the State had to prove:
1. On or about December 6, 2018, the defendant knowingly or
intentionally possessed marijuana, a controlled substance.
2. The defendant knew that the substance he possessed was
marijuana.
The jury was further instructed that to find him guilty of possession of drug
paraphernalia, the State had to prove Buselmeier “knowingly or intentionally
possessed drug paraphernalia.” The court instructed the jury on possession:
The law recognizes several kinds of possession. A person
may have actual possession or constructive possession. A person
may have sole or joint possession.
A person who has direct physical control over a thing on his
person is in actual possession of it.
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A person, who, although not in actual possession, has both
the power and the intention at a given time to exercise dominion or
control over a thing, either directly or through another person or
persons, is in constructive possession of it. A person’s mere
presence at a place where a thing is found or proximity to the thing
is not enough to support a conclusion that the person possessed the
thing.
If one person alone has actual or constructive possession of
a thing, possession is sole. If two or more persons share actual or
constructive possession of a thing, possession is joint.
Whenever the word “possession” has been used in these
instructions, it includes actual as well as constructive possession and
sole as well as joint possession.
Buselmeier challenges the sufficiency of the evidence that he possessed
marijuana or drug paraphernalia. He argues the State failed to prove he had
knowledge of and control over either. He admits that the marijuana and drug
paraphernalia were found inside his vehicle in a hip pack that was inside a
backpack. But he argues there was no evidence of his personal effects with the
marijuana or paraphernalia to show he was in exclusive possession. He also
claims other people may have accessed his vehicle.
Viewing the evidence in the light most favorable to upholding the verdict,
there is substantial evidence by which the jury could find Buselmeier had
knowledge of and control over the marijuana. Both were located in his vehicle,
and Buselmeier was alone when Officer Fulk located him. The evidence suggests
Buselmeier had been hunting alone in the days before. Although Buselmeier
speculates an unknown person may have accessed his truck and placed the items
on the backseat, the jury could reasonably reject this claim. See State v. Thornton,
498 N.W.2d 670, 673 (Iowa 1993) (“The jury is free to believe or disbelieve any
testimony as it chooses and give weight to the evidence as in its judgment such
evidence should receive.”); see also State v. Musser, 721 N.W.2d 758, 761 (Iowa
16
2006) (“It is not the province of the court . . . to resolve conflicts in the evidence, to
pass upon the credibility of witnesses, to determine the plausibility of explanations,
or to weigh the evidence; such matters are for the jury.”).
Buselmeier also challenges the DCI lab report that identified the substances
found in his vehicle as marijuana. The court admitted the test results over
Buselmeier’s objection that the State had no provided a sufficient foundation as to
the testing process. Buselmeier then cross-examined the DCI criminalist who
conducted the test about her testing methods. To the extent that the jury found
the test results identifying the marijuana credible, there is nothing in the record that
calls those results or the testimony by the DCI criminalist into doubt sufficiently to
allow us to substitute our judgment for that of the jury. See State v. DeRaad, 164
N.W.2d 108, 112 (Iowa 1969) (“It is only when evidence which the trier of the fact
has relied upon is inherently or patently incredible that this court will substitute its
judgment for that of the fact finder.”); State v. Neitzel, 801 N.W.2d 612, 624 (Iowa
Ct. App. 2011) (“[T]he credibility of witnesses is for the factfinder to decide except
those rare circumstances where the testimony is absurd, impossible, or self-
contradictory.”).
V. Jury Instruction Regarding Constructive Possession.
Finally, Buselmeier challenges the trial court’s refusal to give his more
expansive proposed jury instruction on constructive possession. “[W]e generally
review a district court’s refusal to give a requested jury instruction for errors at
law . . . .” State v. Plain, 898 N.W.2d 801, 811 (Iowa 2017). In doing so, we
consider the jury instructions as a whole. See State v. Davis, 951 N.W.2d 8, 17
(Iowa 2020). “The district court must submit ‘a requested jury instruction if it
17
correctly states the applicable law and is not embodied in other instructions.’”
State v. Benson, 919 N.W.2d 237, 246-47 (Iowa 2018) (citation omitted).
We find no error in the trial court’s refusal to give the requested possession
instruction. Some of the language of the requested instruction is substantially
similar to that contained in the instruction the trial court gave the jury. The
requested instruction differs by including factors the jury may consider in situations
where a controlled substance is found in a place occupied by multiple people. But
the facts do not support giving such an instruction because there is no evidence
that anyone other than Buselmeier occupied his vehicle. As such, we find no error.
VI. Conclusion.
We affirm Buselmeier’s convictions for possession of a controlled
substance and possession of drug paraphernalia.
AFFIRMED.