STATE OF IOWA, Plaintiff-Appellee, vs. BRADLEY LEE WINTERS, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-137 / 06-0535
Filed April 11, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BRADLEY LEE WINTERS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Cerro Gordo County, James M.
Drew, Judge.
Bradley L. Winters appeals his conviction and sentence for possession of
marijuana. AFFIRMED.
Bradley Winters, Des Moines, pro se.
Colin C. Murphy of Fitzsimmons & Vervaecke Law Firm, P.L.C., Mason
City, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney
General, and Paul L. Martin, County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Mahan, JJ.
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MAHAN, J.
Bradley L. Winters appeals his conviction for possession of marijuana in
violation of Iowa Code section 124.401(5) (2005). On appeal, Winters argues the
district court erred by denying his motion to suppress, denying his motion for new
trial, and sentencing him as a habitual offender.
He also claims there was
insufficient evidence to convict him of possession of marijuana and the sentence
was illegal under the double jeopardy clause. We affirm.
I. Background Facts and Proceedings
On September 25, 2005, at approximately 3:30 a.m., Mason City police
officers received a call reporting a possible car accident. Officers discovered a
parked car blocking one lane of traffic on a two-lane street. They approached the
car and found a woman in the passenger seat and Winters in the driver’s seat.
Winters was tilted toward the center of the car and appeared to be asleep. The
keys to the vehicle were not in the ignition. There was an open container of
alcohol in the console between Winters and his female companion, and the
vehicle smelled of alcohol.
Winters was groggy and slow to respond to
questioning, but definitively said “no” on two occasions when asked whether he
would be willing to perform field sobriety tests.
Winters was placed under arrest for operating a vehicle while intoxicated
(OWI), hand-cuffed, and searched.
The officers found a rolled cigarette
containing a green, leafy substance in a cigarette box in his shirt pocket. The
cigarette later tested positive for marijuana. During the course of the search,
Winters passed out on the hood of the police car. The officers were unable to
revive him, so he was transported to the hospital by ambulance. While at the
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hospital, the officers requested a blood test which revealed that his blood alcohol
level was below the legal limit.
Winters was charged with possession of a controlled substance, third or
subsequent offense, a class “D” felony. Because he had multiple prior felony
convictions, he was charged as a habitual felony offender under Iowa Code
section 902.8. 1
Prior to trial, Winters filed a motion to suppress evidence of the marijuana
arguing it was “illegally obtained by the police as the consequence of an illegal
search.” The court denied the motion, finding the arrest was proper.
A jury found Winters guilty on January 11, 2006, for possession of
marijuana.
Winters did not stipulate to his prior convictions for sentencing
enhancement. Two weeks later, a jury found him guilty as a habitual offender,
and he was sentenced to an indeterminate sentence of fifteen years. The district
court denied Winters’ motion in arrest of judgment and motion for a new trial.
II. Probable Cause for Arrest
On appeal, Winters claims the district court erred in denying his motion to
suppress because there was no probable cause to believe he was, or had been,
operating the vehicle while intoxicated. Because Winters’ motion to suppress
was based on alleged constitutional violations, our review of that ruling is de
novo. State v. Freeman, 705 N.W.2d 293, 298 (Iowa 2005).
According to Iowa Code section 804.7(3), an officer may make an arrest
without a warrant “where the peace officer has reasonable ground for believing
that an indictable public offense has been committed and has reasonable ground
1
He was not ultimately charged with OWI.
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for believing that the person to be arrested has committed it.” The “reasonable
ground” standard within the Code is the same as probable cause. Freeman, 705
N.W.2d at 298. In other words, in order to be valid, a warrantless arrest must be
supported by probable cause. State v. Ceron, 573 N.W.2d 587, 592 (Iowa 1997).
Probable cause exists when the totality of the circumstances known to the
arresting officer would lead a reasonable, prudent person to believe both that a
crime is being or has been committed and that the arrestee is committing or has
committed it. Freeman, 705 N.W.2d at 298. In determining whether probable
cause is present, the court must consider all of the evidence available to the
officer, regardless of whether each component would support probable cause on
its own. Ceron, 573 N.W.2d at 592. The facts supporting probable cause need
not be strong enough to sustain a conviction, but must rise above mere
suspicion. Id.
At the time Winters was arrested for OWI the officers knew: (1) the car
was parked at an awkward angle blocking one lane of traffic on a two-lane street;
(2) Winters was sitting in the driver’s seat and was asleep; (3) there was an open
container of alcohol in the console next to Winters; (4) the car smelled of alcohol;
and (5) Winters was “groggy,” going in and out of consciousness, and slow to
respond to questions.
A reasonable and prudent person could believe he had committed the
crime of driving while intoxicated. We conclude these facts, taken together, rise
above mere suspicion and provide probable cause for Winters’ arrest. See State
v. Hopkins, 576 N.W.2d 374, 377-78 (Iowa 1998) (stating that evidence may fail
to prove that an intoxicated defendant was in the process of operating a motor
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vehicle when authorities found him or her; nevertheless, circumstantial evidence
may establish that defendant had operated while intoxicated when driving to the
location where the vehicle was parked). Therefore, we find the district court
properly denied his motion to suppress.
III. Sufficiency of the Evidence
Winters claimed the court erred in denying his motion for new trial
because there was not sufficient evidence to support the jury’s conclusion that he
knowingly possessed marijuana.
We review sufficiency-of-the-evidence
challenges for correction of errors at law. Id. at 377.
A jury’s finding of guilt is binding on appeal if supported by substantial
evidence.
Id.
Substantial evidence is such evidence as could convince a
rational fact finder that the defendant is guilty beyond a reasonable doubt. Id. In
determining whether substantial evidence exists, the record is viewed in the light
most favorable to the State. Id.
Unlawful possession of a controlled substance requires proof that the
defendant:
(1) exercised dominion and control over the contraband, (2) had
knowledge of its presence, and (3) had knowledge that the material was a
controlled substance. State v. Reeves, 209 N.W.2d 18, 21 (Iowa 1973). Winters
does not specifically challenge the sufficiency of the evidence for any specific
element, instead he points to several items in the record and conclusively states
these “numerous inconsistencies cannot be resolved so favorably on behalf of
the State.” These “numerous inconsistencies” consist of the following: (1) only
one officer smelled alcohol in the vehicle; (2) one officer described the open
container as a bottle while the other said it was a can; (3) a police videotape of
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the incident had been erased; (4) there were allegedly chain of evidence
problems relating to the marijuana; and (5) the cigarette package within which
the marijuana was discovered was thrown away and not logged into evidence.
Winters claims the totality of these inconsistencies raises serious and legitimate
issues regarding the officers’ trustworthiness.
The inconsistencies raised by Winters go to the credibility of the police
officers, not to whether there was sufficient evidence for conviction. When the
evidence is in conflict, the fact finder may resolve the conflict in accordance with
its own views on the credibility of the witnesses.
Id.
We find there was
substantial evidence to prove the marijuana was found in the pocket of his shirt.
The possession of the marijuana, on his person, in a format ready to be used, is
sufficient evidence to support the three elements for conviction. See State v.
Parrish, 502 N.W.2d 1, 3 (Iowa 1993) (stating knowledge of presence and
knowledge of its nature can be inferred from dominion and control).
The question for this court is not whether we would have found Winters
guilty beyond a reasonable doubt. It is whether, having entrusted questions of
weight and credibility to the jury, and viewing the evidence in the light most
favorable to the State, a reasonable trier of fact could have found Winters guilty
beyond a reasonable doubt. Under the record in this case, we must answer this
question in the affirmative. Therefore, we find the district court did not err in
denying Winters’ motion for a new trial.
IV. Prosecutorial Misconduct
At trial Winters presented deposition testimony from Adam Torres. In this
deposition testimony, Torres admits placing the marijuana in a cigarette package
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and placing this package on the seat of Winters’ car.
Winters contends the
county attorney committed prosecutorial misconduct in closing arguments when
he repeatedly made statements beginning with the phrase “if we are to believe
anything Mr. Torres has to say . . . .”
The initial requirement for a due process claim based on prosecutorial
misconduct is proof of misconduct. State v. Piper, 663 N.W.2d 894, 913 (Iowa
2003).
The second required element is proof the misconduct resulted in
prejudice to such an extent that the defendant was deprived of a fair trial. Id.
Trial courts have broad discretion in ruling on claims of prosecutorial misconduct.
State v. Thornton, 498 N.W.2d 670, 676 (Iowa 1993). Therefore, we review a
district court’s ruling on a motion for mistrial based on prosecutorial misconduct
for abuse of discretion. Id.
“Iowa follows the rule that it is improper for a prosecutor to call the
defendant a liar, to state the defendant is lying, or to make similar disparaging
comments.” State v. Graves, 668 N.W.2d 860, 876 (Iowa 2003). However, a
prosecutor is still free to craft an argument that includes reasonable inferences
based on the evidence and, when a case turns on which of two conflicting stories
is true, to argue certain testimony is not believable. Id. “The key point is that
counsel is precluded from using argument to vouch personally as to a
defendant’s guilt or a witness’s credibility.” Id. at 874.
After our review of the prosecutor’s statements, we agree with the district
court’s conclusion that there was no prosecutorial misconduct because the
arguments were based on reasonable inferences and not inflammatory. The
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county attorney did not brand Torres a liar; he merely argued his testimony was
not believable.
V. Marijuana Possession as a Class “D” Felony
Winters filed a pro se motion to dismiss arguing possession of marijuana,
third offense, was only an aggravated misdemeanor and not a class D felony. In
support of this argument, Winters cited Iowa Code section 124.401(5) which
provides, in pertinent part:
It is unlawful for any person knowingly or intentionally to
possess a controlled substance . . . . Any person who violates this
subsection is guilty of a serious misdemeanor for a first offense. A
person who commits a violation of this subsection and who has
previously been convicted of violating this chapter or chapter 124A,
124B, or 453B is guilty of an aggravated misdemeanor. A person
who commits a violation of this subsection and has previously been
convicted two or more times of violating this chapter or chapter
124A, 124B, or 453B is guilty of a class “D” felony.
If the controlled substance is marijuana, the punishment
shall be by imprisonment in the county jail for not more than six
months or by a fine of not more than one thousand dollars, or by
both such fine and imprisonment for a first offense. If the controlled
substance is marijuana and the person has been previously
convicted of a violation of this subsection in which the controlled
substance was marijuana, the punishment shall be as provided in
section 903.1, subsection 1, paragraph “b”. If the controlled
substance is marijuana and the person has been previously
convicted two or more times of a violation of this subsection in
which the controlled substance was marijuana, the person is guilty
of an aggravated misdemeanor.
(Emphasis added.) Because Winters only possessed marijuana, he argued it
was improper to charge him under the felony track for possession.
The district court rejected this argument, citing State v. Cortez, 617
N.W.2d 1 (Iowa 2000) as justification for the enhancement. In Cortez, the court
concluded it would be absurd to treat a first-time marijuana offender under the
second unnumbered paragraph in section 124.401(5) when the person had
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previously been convicted of other drug offenses. Id. at 3. The supreme court
held that “[o]nce a defendant is convicted of a single offense involving other
illegal substances . . . all crimes committed prior or subsequent thereto could be
used to enhance the offender’s sentence under the stricter, felony track.” Id. In
light of Winters’ numerous convictions for prior, non-marijuana drug offenses, 2
the court denied his motion to dismiss.
On appeal, Winters asks us to abandon precedent and overrule Cortez
because it was “erroneously decided.” We find Winters’ argument to be without
merit and choose not to overrule Cortez. 3
VI. Double Jeopardy
In his pro se brief Winters claims the district court erred in sentencing him
under the habitual offender statute because this was “double jeopardy” which
was “clearly sentencing [him] for his priors and not the current or actual offense.”
It is well established that the use of prior convictions to enhance
punishment does not violate constitutional principles of double jeopardy. State v.
Tobin, 333 N.W.2d 842, 845 (Iowa 1983) (citing Spencer v. Texas, 385 U.S. 554,
559-60, 87 S. Ct. 648, 651, 17 L. Ed. 2d 606, 611-12 (1967)); State v. Popes,
290 N.W.2d 926, 927 (Iowa 1980); State v. Kramer, 235 N.W.2d 114, 117 (Iowa
1975).
As stated in State v. Miller, 606 N.W.2d 310, 312 (Iowa 2000),
“[e]nhanced punishment is imposed only because, notwithstanding [the
2
Winters has a long history of criminal substance abuse. He was convicted of
possession of marijuana in 1985 and 1995. He was convicted of possession of
marijuana with intent to deliver in 1992. In 1998 he was twice convicted of possession of
methamphetamine with intent to deliver.
3
We also reject arguments set forth in Winters’ pro se reply brief that attempt to
distinguish Cortez from the current case.
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defendant’s] past record, and the lessons he should have learned from it, [the
defendant] still did not get the point.”
When the court applies enhanced
punishment, the defendant is not being prosecuted for his past offenses. Id.
Instead, enhanced punishment is based on the defendant’s conduct at the time
of the defendant’s latest offense. Id. Accordingly, we find the district court did
not violate Winters’ constitutional rights when factoring his prior convictions into
its determination of his current sentence.
We have considered Winters’ remaining arguments and find them to be
without merit. The conviction and sentence are affirmed.
AFFIRMED.
Huitink, J., concurs; Sackett, C.J., concurs and writes separately.
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SACKETT, C.J. (writing separately)
I concur with majority’s well written opinion in all respects. I too would
affirm.
I write separately because I have concern about the prosecutor
repeatedly making statements beginning with the phrase “if we are to believe
anything Mr. Torres has to say. . . .” In this situation I do not find it to be
prosecutorial misconduct. However I believe the phrase “if we are to believe
anything [witness] has to say” is best excluded from a prosecutor’s vocabulary as
it can be taken as an inference that the prosecutor does not believe the witness.
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