State of Iowa v. Stacy Dwayne Karr , 919 N.W.2d 767 ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1111
Filed June 6, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
STACY DWAYNE KARR,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Washington County, Myron L.
Gookin, Judge.
Stacy Karr appeals his conviction for possession of methamphetamine,
third offense. AFFIRMED.
Mark C. Meyer, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
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VOGEL, Presiding Judge.
Stacy Karr appeals from his conviction of possession of
methamphetamine–third offense, asserting there was insufficient evidence to
support the conviction, the verdict was against the weight of the evidence, the
district court erred by not including a jury instruction on “dominion and control,” and
the district court should have answered a jury question in the presence of Karr and
his counsel. Because Karr’s confession was corroborated by evidence seized by
officers, the evidence was sufficient to support Karr’s conviction. The district court
did not abuse its discretion in denying Karr’s motion for a new trial. Also, the district
court did not err in declining to instruct the jury on “dominion and control” using the
firearm instruction, and Karr failed to preserve error on his claim that the district
court violated his constitutional right to be present at every stage of the
proceedings when it answered a jury question.
I. Background Facts and Proceedings
On January 22, 2016, Washington Police officers executed a search
warrant at a residence in Washington. The initial warrant was approved to locate
stolen property from a residential burglary. The residence did not belong to Karr.
In executing the warrant, the officers located four people, including Karr. The
officers located Karr and another individual in a bedroom, along with cash,
methamphetamine, and some drug paraphernalia. Upon discovering drugs, the
officers secured the residence and obtained another search warrant for the drugs
and drug paraphernalia. The officers found a digital scale, a pack of cigarettes
that contained methamphetamine, a glass pipe, and plastic bags or containers
holding methamphetamine.
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After securing the residence, Officer Brian VanWilligen advised Karr of his
Miranda rights,1 and Karr indicated he understood his rights. Karr stated he towed
the homeowner’s vehicle to a garage in Iowa City approximately one week prior to
the search, and he stopped by to see the homeowner while he was in town on
another errand. Officer VanWilligen asked Karr if he used methamphetamine prior
to the execution of the search warrant and Karr responded that he had “taken one
toot” from a meth pipe given to him by the homeowner.
The State charged Karr with possession of a controlled substance,
methamphetamine–third offense, in violation of Iowa Code section 124.104(5)
(2016). Following trial, a jury returned a guilty verdict. Karr filed a motion in arrest
of judgment and for a new trial claiming the State failed to properly instruct the jury
on dominion and control and, therefore, the State failed to prove he actually or
constructively possessed methamphetamine. These motions were denied. Karr
was sentenced to a five-year term of incarceration, with the sentence being
suspended.
Karr appeals.
II. Standard of Review
We review claims of sufficiency of the evidence for errors at law. State v.
Rohm, 609 N.W.2d 504, 509 (Iowa 2000). We will “uphold a finding of guilt if
‘substantial evidence’ supports the verdict.” Id. “‘Substantial evidence’ is evidence
upon which a rational finder of fact could find a defendant guilty beyond a
1
See Miranda v. Arizona, 384 U.S. 436, 479 (1966) (requiring the police to advise
suspects of their rights under the Fifth and Fourteenth Amendments before beginning a
custodial interrogation).
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reasonable doubt.” Id. “We generally review rulings on motions for new trial
asserting a verdict is contrary to the weight of the evidence for an abuse of
discretion.” State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016). We review jury
instructions for corrections of errors at law. Alcala v. Marriott Int’l, Inc., 880 N.W.2d
699, 707 (Iowa 2016).
III. Sufficiency of the Evidence
Karr asserts there is insufficient evidence to support his conviction for
possession of methamphetamine. He claims his statement that he had “taken one
toot” is insufficient to show he had possession of methamphetamine because
drugs were not found on his person, he was not asked to submit to drug testing,
and any specific pipe he presumably used was not submitted for drug testing.
To establish possession of a controlled substance, the State must prove a
defendant “exercised dominion and control over the contraband, had knowledge
of the contraband’s presence, and had knowledge the material was a narcotic.”
State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014). This may be established
through actual or constructive possession. State v. Reed, 875 N.W.2d 693, 705
(Iowa 2016) (citation omitted). Actual possession requires the contraband to be
found on the defendant’s person or that “substantial evidence supports a finding it
was on his or her person at one time.” Thomas, 847 N.W.2d at 442 (emphasis
added) (quotation omitted). “In other words, ‘[a]ctual possession may be shown
by direct or circumstantial evidence.’” Id. (quoting State v. Vance, 790 N.W.2d
775, 784 (Iowa 2010)).
Karr stated to Officer VanWilligen that he had “taken one toot” of
methamphetamine given to him by the homeowner. In Officer VanWilligen’s
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fourteen years of experience in law enforcement, he had heard the term “taken
one toot” before and knew it meant Karr “smoked from a methamphetamine pipe.”
Yet, a general confession by the accused standing alone will not warrant a criminal
conviction unless other proof shows the defendant committed the crime. Iowa R.
Crim. P. 2.21(4); State v. Polly, 657 N.W.2d 462, 466 (Iowa 2003).
Karr’s confession that he had smoked and thereby possessed
methamphetamine is corroborated by evidence seized during the execution of the
search warrant. In the room where officers located Karr, the officers found plastic
bags or containers that tested positive for methamphetamine. Furthermore, the
officers found a glass plate that contained a white substance and glass pipes that
appeared to have some burnt residue, indicating they had been used. All of this
evidence corroborated Karr’s statement he possessed and had “taken one toot”
of, or smoked, methamphetamine.
Upon our review of the record, there is sufficient corroborating evidence to
support Karr’s statement he smoked and therefore possessed methamphetamine.
Accordingly, we find there is substantial evidence to support Karr’s conviction for
possession of a controlled substance, methamphetamine–third offense because
Karr possessed methamphetamine “at one time.” Thomas, 847 N.W.2d at 442.
IV. Weight of the Evidence
Karr next claims the weight of the evidence does not support the jury’s
verdict and the district court abused its discretion in denying his motion for a new
trial. A motion for a new trial based on the weight of the evidence will be granted
if the district court determines the verdict is contrary to the weight of the evidence
and a miscarriage of justice has occurred. State v. Maxwell, 743 N.W.2d 185, 193
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(Iowa 2008). “The weight-of-the-evidence analysis is much broader than a
sufficiency-of-the-evidence analysis in that ‘it involves questions of credibility and
refers to a determination that more credible evidence supports one side than the
other.’” Id. (quoting State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006)). A district
court should overturn a jury’s verdict only in extraordinary cases where the
evidence preponderates heavily against the verdict. State v. Shanahan, 712
N.W.2d 121, 135 (Iowa 2006).
In its ruling on Karr’s motion for a new trial, the district court considered
Karr’s admission, the evidence found in the bedroom where officers located Karr,
and the credibility of the State’s witnesses. After considering such evidence, the
district court found the evidence did not preponderate heavily against the jury’s
verdict. Upon our review of the record, we agree and find the district court did not
abuse its discretion in denying Karr’s motion for a new trial.
V. Jury Instruction
Karr next contends the district court erred in failing to provide his requested
jury instruction. “Iowa law requires a court to give a requested jury instruction if it
correctly states the applicable law and is not embodied in other instructions.”
Alcala, 880 N.W.2d at 707 (citation omitted). Regarding possession, the jury was
instructed:
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.
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
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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” is used in these instructions,
it includes actual as well as constructive possession and sole as well
as joint possession.
See Iowa Crim. Jury Instructions 200.47. Karr asserts the district court erred when
it declined to include the instruction for dominion and control of a firearm, but with
substituting “controlled substance” for “firearm.” See Iowa Crim. Jury Instructions
2400.9.2 The State asserts additional definitions of terms found in the jury
instructions were unnecessary and Karr’s proposed substituted language in
instruction 2400.9 would confuse the jury. Viewing the instructions the district court
provided to the jury, we find they fairly state the law as applied to the facts of the
case. The instructions given to the jury sufficiently provided what is required for a
person to be in “possession.” In addition, the instruction requested by Karr falls
under Iowa Criminal Jury Instructions chapter 2400, entitled weapons. Because
Karr did not face a weapons charge, Iowa Criminal Jury Instruction 2400.9 is not
applicable and is not made applicable after any language manipulation or
substitution. Accordingly, the district court did not err in declining to instruct the
jury using the firearm instruction.
2
“‘Dominion and control’ means ownership or right to the [firearm] [offensive weapon] and
the power or authority to manage, regulate or oversee its use.” Iowa Crim. Jury
Instructions 2400.9.
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VI. Jury Question
Karr’s final claim is that the district court violated his constitutional right to
be present during every stage of the trial when it answered a jury question outside
his presence.3 See State v. Shorter, 893 N.W.2d 65, 83 (Iowa 2017) (noting a
criminal defendant has the right to be personally present at every stage of the trial).
“When the rule is violated, prejudice is presumed unless the record shows to the
contrary.” Id. (citing State v. Griffin, 323 N.W.2d 198, 201 (Iowa 1982)). The State
argues Karr failed to preserve error on this issue and also does not raise the issue
as an ineffective-assistance-of-counsel claim.
“To preserve error for appeal, generally, defendants challenging a guilty
plea must file a motion in arrest of judgment prior to sentencing.” State v. Ortiz,
789 N.W.2d 761, 764 (Iowa 2010). Karr cannot point to any objection he may have
made involving the jury question and the court’s answer, and we note there was
no record made of this proceeding. Only a written record of the question and
answer was produced for the record. Although Karr filed a motion in arrest of
judgment, he did not challenge any procedure regarding how the district court
answered the jury’s question. Because Karr failed to object during the trial, did not
assert this claim in his motion in arrest of judgment and does not also raise the
issue as an ineffective-assistance-of-counsel claim, he has failed to preserve error
on this issue.
3
The jury asked, “Is Officer [Van]Willigan’s account in court of [Karr’s] confession [to] be
considered testimony, a confession, or testimony of a confession?” The court replied, “In
response to your question, please carefully review Instructions 8 and 9.”
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VII. Conclusion
Because Karr’s confession was corroborated by evidence seized by
officers, the evidence was sufficient to support Karr’s conviction. The district court
did not abuse its discretion in denying Karr’s motion for a new trial. Also, the district
court did not err in declining to instruct the jury on “dominion and control” using the
firearm instruction.
AFFIRMED.