State of Iowa v. Travis Lyle Starr

IN THE COURT OF APPEALS OF IOWA
No. 22-0277
Filed August 9, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TRAVIS LYLE STARR,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, James B. Malloy,
District Associate Judge.
The defendant challenges the sufficiency of the evidence supporting his
conviction for first-degree harassment. AFFIRMED.
John L. Dirks of Dirks Law Firm, Ames, for appellant.
Brenna Bird, Attorney General, and Thomas J. Ogden, Assistant Attorney
General, for appellee.
Considered by Greer, P.J., Ahlers, J., and Potterfield, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
2
POTTERFIELD, Senior Judge.
Travis Starr challenges the sufficiency of the evidence supporting his
conviction for first-degree harassment. We review challenges to the sufficiency of
the evidence for correction of errors at law. State v. Sanford, 814 N.W.2d 611,
615 (Iowa 2012). We affirm when the verdict is supported by substantial evidence,
meaning “the quantum and quality of evidence is sufficient to ‘convince a rational
fact finder that the defendant is guilty beyond a reasonable doubt.’” State v. Banes,
910 N.W.2d 634, 637 (Iowa Ct. App. 2018) (citation omitted). In conducting our
review, we consider the evidence in the light most favorable to the verdict,
including all reasonable inferences that may be fairly drawn from the evidence. Id.At the underlying criminal trial, Officer Lane Thayer testified he detained
Starr on an unrelated matter, at which time Officer Thayer smelled alcohol coming
from Starr’s person and noted he had bloodshot, watery eyes. While Starr was
being detained at the police station, he was handcuffed to a bench, where he sat.
Video exhibits introduced by the State show Starr lunging at Officer Thayer, who
was outside of his reach. Starr also told Officer Thayer, “I’ll fucking kill you when I
get out of here.” Based on this statement, Starr was charged with first-degree
harassment.
The jury was instructed that Starr was guilty of first-degree harassment if
the State proved the following:
1. On or about August 8, 2021, Travis Starr purposefully
and without legitimate purpose had personal contact with Officer
Lane Thayer.
2. Mr. Starr communicated a threat to commit the crime of
murder . . . .
3. Mr. Starr did so with the specific intent to threaten,
intimidate, or alarm Officer Lane Thayer.
3
The jury found Starr guilty as charged, and he appealed. Here, Starr argues
there is not substantial evidence he had the specific intent to threaten, intimidate,
or alarm Officer Thayer. He also argues he had a “legitimate purpose” in telling
Officer Thayer he would kill him.
Specific Intent. Starr argues there is not substantial evidence he had
the specific intent needed to commit first-degree harassment. He relies on the
affirmative defense of intoxication, claiming the evidence showed his level of
intoxication made him incapable of forming the requisite intent. See State v.
Guerrero Cordero, 861 N.W.2d 253, 258 (Iowa 2015), overruled on other
grounds by Alcala v. Marriott Intern., Inc., 880 N.W.2d 707–08 (Iowa 2016).
“From the beginning, the [intoxication] defense has been applied in Iowa only
to specific-intent crimes, not those of general intent.” Id. at 259. And “before
intoxication could prevent a finding of specific intent, the offender not only had to
be intoxicated, but so intoxicated that he or she could no longer reason and was
incapable of forming a felonious intent.” Id. When a defendant invokes the
intoxication defense, “the State retains the burden of proving the element of
specific intent.” State v. Templeton, 258 N.W.2d 380, 383 (Iowa 1977).
Starr gave notice before trial that he intended to rely upon the affirmative
defense of intoxication. And there was evidence introduced at trial that Starr was
consuming alcohol before he was detained by Officer Thayer. Officer Thayer
testified about Starr’s bloodshot, watery eyes and being able to smell alcohol
coming from him. And Starr testified he drank nearly two pints of whiskey during
a short window of time a few hours before Officer Thayer detained him. Thus, a
4
number of facts support Starr’s claim that he was intoxicated at the time he made
the threatening statement to Officer Thayer. And, normally, “when a defendant
urges a defense of voluntary intoxication which is supported by substantial
evidence, such evidence is to be considered by the jury on the material issue in
the State's case upon which it bears . . . .” Id. at 380.
But here, the jury was not instructed on the intoxication defense, and Starr
never asked for the instruction to be given.1 “[O]bjections to giving or failing to give
jury instructions are waived on direct appeal if not raised before counsel’s closing
arguments, and the instructions submitted to the jury become the law of the case.”
State v. Fountain, 786 N.W.2d 260, 262 (Iowa 2010). Because the jury was not
instructed to consider whether Starr’s level of intoxication impacted his ability to
form specific intent, and because the instructions as given are the law of the case,
we do not reach the merits of Starr’s claim that the jury should have acquitted him
based on his intoxication and resulting incapacity to form the requisite intent. See
State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009) (explaining that when a
defendant does not “object to the instructions given to the jury at trial . . . the jury
1 While no instruction was given in this case, for reference, the model instruction
for “intoxication as a defense” states:
The defendant claims he was under the influence of
intoxicants at the time of the alleged crime. The fact that a person is
under the influence of intoxicants does not excuse nor aggravate
[his] [her] guilt.
Even if a person is under the influence of an intoxicant, he is
responsible for his act if he had sufficient mental capacity to form the
specific intent necessary to the crime charged or had the specific
intent before he fell under the influence of the intoxicant and then
committed the act. Intoxication is a defense only when it causes a
mental disability which makes the person incapable of forming the
specific intent.
Iowa Crim. Jury Instructions 200.14 (emphasis added).
5
instructions become the law of the case for purposes of our review of the record
for sufficiency of the evidence”).
Legitimate Purpose. Starr maintains the State failed to prove he was
without “legitimate purpose” when he told Officer Thayer “I’ll fucking kill you when
I get out of here.” On appeal, he argues his statement to Officer Thayer was akin
to the statements made by the defendant in State v. Fratzke, 446 N.W.2d 781, 784
(Iowa 1989), where our supreme court reversed the defendant’s harassment
conviction after concluding his statements served the legitimate purpose of
protesting governmental action.
We reject Starr’s contention. As a preliminary matter, we note that the
“legitimate purpose” that would avoid violation of the harassment statute refers not
to a legitimate purpose for the personal contact, but a legitimate purpose to
threaten, intimidate, or alarm. State v. Evans, 672 N.W.2d 328, 331 (Iowa 2003)
(“Because there must be a specific intent to threaten, intimidate, or alarm, the only
legitimate purpose that will avoid the criminal status conferred by the statute would
be a legitimate purpose to threaten, intimidate, or alarm.”). So, while Starr may
have had a legitimate purpose for having personal contact with Officer Thayer—to
protest government action—he points to no legitimate purpose to threaten,
intimidate, or alarm while doing so. As such, there was sufficient evidence to allow
the jury to find that Starr acted without legitimate purpose.
Turning to Starr’s constitutional claim based on Fratzke, we note that our
supreme court relied on Fratzke in concluding that the harassment statute’s
requirement that the defendant’s conduct be without legitimate purpose is one
reason why the statute does not infringe on First Amendment rights. See id. (“In
6
[Fratzke], we held that First Amendment considerations raised with respect to
subsection (1)(a) of this statute were obviated because of the requirement that the
communication be ‘without legitimate purpose.’ A similar requirement exists with
respect to the contact that is criminalized under subsection (1)(b) of the statute.”).
The defendant in Fratzke “wrote a nasty letter to a state highway patrolman
to protest a speeding ticket.” 446 N.W.2d at 781. The letter was mailed, along
with the defendant’s payment of a fine and court costs, to the county clerk of court.
Id. The letter was addressed to the state trooper who arrested him and included
comments “characterizing his speeding arrest as a case of ‘legalized highway
robbery,’” claiming “the trooper’s conduct resulted in an unfair trial that was the
product of highway safety priorities gone askew,” and “accus[ing] [the trooper] of
being a liar as well as a ‘thief disguised as a protector’” because he “refused to
show the defendant the radar equipment at the scene.” Id. at 781. The defendant
went further, claiming the trooper “just enjoys stealing people’s money so he can
show everyone what a red-necked m*th*r-f*ck*r he is” and, in closing, “expressed
the wish—'not to be interpreted as anything whatsoever in the way of a threat’—
that [the trooper] ‘have an early and particularly painful death hopefully at the side
of a road somewhere where he's robbing someone else.’” Id. (asterisks in original).
The district court apparently found the defendant’s letter to be a legitimate citizen
complaint but concluded his “language and terms” violated the law “against
communications written ‘without legitimate purpose.’” Id. at 784. Our supreme
court reversed the defendant’s conviction, ruling, “This distinction drawn by the trial
court between the words used and the communication itself raises the decisive
question on this appeal: Can the use of offensive language negate (and thereby
7
criminalize) the otherwise legitimate purpose of protesting governmental action?
We think not.” Id.As with the defendant in Fratzke, Starr was criminally charged and
convicted based on his speech. Generally speaking, the First Amendment to the
United States Constitution “prevents states from punishing ‘the use of words or
language not within “narrowly limited classes of speech.”’” State v. Milner, 571
N.W.2d 7, 13 (Iowa 1997) (quoting Gooding v. Wilson, 405 U.S. 518, 521–22
(1972)). And “the First Amendment protects a significant amount of verbal criticism
and challenge directed at police officers. . . . The freedom of individuals verbally
to oppose or challenge police action without thereby risking arrest is one of the
principal characteristics by which we distinguish a free nation from a police state.”
City of Houston v. Hill, 482 U.S. 451, 461–62 (1987). That said, some categories
of speech fall outside the protection of the First Amendment. See, e.g.,
Counterman v. Colorado, 143 S. Ct. 2106, 2113–14 (2023) (recognizing “historical
and traditional categories” of unprotected speech, including incitement,
defamation, obscenity, and true threats). “True threats of violence are outside the
bounds of First Amendment protection and punishment as crimes.” Id. at 2111.
“True threats are ‘serious expression[s]’ conveying that a speaker means to
‘commit an act of unlawful violence.’” Id. at 2114 (citation omitted). “The ‘true’ in
that term distinguishes what is at issue from jests, ‘hyperbole,’ or other statements
that when taken in context do not convey a real possibility that violence will follow
(say, ‘I am going to kill you for showing up late’).” Id. Here, Starr physically lunged
at Officer Thayer. While his restraints prevented him from making contact with the
officer, the action bolsters the conclusion that his threat to kill Officer Thayer was
8
more than just bluster. Starr’s “actions went beyond mere criticism of police
conduct. They were threats. The First Amendment ‘does not protect speech that
constitutes a true threat.’” State v. Howard, No. 99-0890, 2000 WL 962655, at *3
(Iowa Ct. App. July 12, 2000) (quoting Milner, 571 N.W.2d at 14). We conclude
there is substantial evidence Starr’s statement was a true threat and, therefore,
did not have a legitimate purpose.
We affirm Starr’s conviction.
AFFIRMED.