                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1976
                              Filed April 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JONATHAN KAY DAVIS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Lawrence E. Jahn,

Judge.



      Defendant appeals his conviction for operating while intoxicated

(marijuana), first offense, in violation of Iowa Code section 321J.2 (2013).

AFFIRMED.



      John L. Dirks of Dirks Law Firm, Ames, for appellant.

      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney

General, and Joseph Nehring, Student Legal Intern, for appellee.



      Heard by Potterfield, P.J., and Mullins and McDonald, JJ.
                                               2


MCDONALD, Judge.

       Jonathan Davis appeals his conviction for operating while intoxicated in

violation of Iowa Code section 321J.2 (2013). Davis claims his counsel provided

constitutionally-deficient representation in failing to make several interrelated

challenges to the statute, the marshaling instruction, and the evidence. Davis

also argues the district court abused its discretion in denying his motion for

mistrial after one of the State’s witnesses testified Davis stated he previously

used crack.1

       In August 2014, Davis was charged with operating while intoxicated

(marijuana), first offense, in violation of Iowa Code section 321J.2. The matter

was tried to a jury. The trial record showed the following. On August 17, 2014,

Davis was driving on Highway 30. Davis passed a pickup truck pulling a thirty-

two foot trailer. When Davis’s vehicle was approximately twenty to thirty feet in

front of the pickup truck, Davis’s vehicle drifted onto the left shoulder of the

highway. Davis jerked the car to the right, overcorrecting the vehicle and causing

it to turn perpendicular to the road. The driver of the pickup truck “hit the brakes

hard” and struck the rear fender of Davis’s vehicle. Davis’s car went into the

ditch, and the truck went into the median. The trailer broke from the tow hitch

and flipped over. When a witness went to check on Davis, Davis accelerated out

of the ditch and left the scene. The witness called 911. As soon as Davis left the




1
 Davis asserts for the first time in his reply brief that trial counsel failed to raise an equal
protection challenge to the constitutionality of Iowa Code section 321J.2. “Parties
cannot assert an issue for the first time in a reply brief.” Sun Valley Iowa Lake Ass'n v.
Anderson, 551 N.W.2d 621, 642 (Iowa 1996). We do not consider the issue.
                                            3


scene, a second witness followed Davis’s car down Highway 30, called 911, and

directed law enforcement to Davis’s location.

       Deputy James Schroeder was the first to respond to the scene. With the

vehicle’s lights activated, Schroeder followed Davis’s car for approximately one

and one-quarter miles before Davis finally pulled over. While following Davis’s

vehicle, Deputy Schroeder observed Davis cross the center line. After being

stopped and upon being questioned, Davis explained he was trying to find his

cigarettes when he lost control of his car. Davis said he had not consumed

alcohol but had taken his prescription medication around 4:00 a.m. or 5:00 a.m.

that morning. With Davis’s consent, Schroeder searched Davis’s car and found

two pill bottles containing medication prescribed to Davis. Schroeder observed

Davis’s pupils were constricted and Davis seemed confused.

       Deputy Hochberger also responded to the scene.               He conducted a

roadside impairment evaluation. Hochberger administered a convergence test,

designed to determine whether Davis could cross his eyes. Davis showed a lack

of convergence, which indicated he was under the influence of central-nervous-

system     depressants,      dissociative   anesthetics,   inhalants,   or   cannabis.

Hochberger administered a modified Romberg test, in which Davis had to close

his eyes, tilt his head back, and estimate when thirty seconds had passed. The

results were inconclusive. Hochberger noted Davis had red, bloodshot eyes and

constricted pupils. Both are indicia of marijuana use. Hochberger testified he

believed Davis to be impaired.          Upon request, Davis consented to go to the

sheriff’s office for further testing.
                                         4


       At the sheriff’s office, Deputy Schroeder read Davis the implied consent

advisory. Schroeder testified Davis stopped him and stated Davis had smoked

marijuana three days earlier. Davis consented to a breath test for alcohol, which

showed no measurable quantity of alcohol.

       Deputy Elizabeth Quinn, a drug recognition expert, examined Davis at the

sheriff’s office and requested Davis provide a urine sample. Davis explained to

Quinn his left leg had been amputated as a result of peripheral artery disease.

Davis told Quinn he was taking the following prescribed medications:

hydrocodone, Diazepam, Adderall, Abilify, blood thinner medication, and blood

pressure medication.    Quinn gave Davis the modified Romberg test.          Quinn

testified that Davis told her the thirty seconds had passed when only twenty six

seconds had passed and that Davis’s eyelids tremored during the test. Quinn

testified both were consistent with marijuana use. Quinn observed heat bumps

on the back of Davis’s tongue and a green film on his tongue, which, she

testified, are indicia of recent use of marijuana.    Davis stated he had been

drinking Mountain Dew, which Quinn testified could have been a possible cause

of the green film on Davis’s tongue. Quinn testified Davis demonstrated a lack of

convergence and high blood pressure, which are indicia of marijuana use. Davis

told Quinn he had used marijuana three to four days prior to the examination, but

he later admitted it was only two days prior.

       Susan Fleming, a criminalist with the Iowa Division of Criminal

Investigations, performed a preliminary screening test of Davis’s urine sample.

The urine test was positive for benzodiazepines, opiates, tamazepam,

oxazepam,     nordiazepam,     diazepam,     hydrocodone,   dihydrocodone,    and
                                           5


marijuana metabolites. Tracy Murano, a criminalist with the Iowa Department of

Public Safety Crime Laboratory, ran a confirmation test on Davis’s urine sample.

Murano confirmed the sample tested positive for 11-nor-9-carboxy-delta-9-

tetrahydrocannabinol, which is “a metabolite of THC, a metabolite of marijuana.”

Murano testified she could not determine when the marijuana had been ingested.

She also testified marijuana remains in a person’s body longer than other drugs.

       During the OWI trial, Deputy Quinn testified the defendant told her that he

had previously used crack. She did not identify a date or indicate whether the

usage was recent. Defense counsel immediately objected to the testimony and

moved for mistrial.     The district court sustained the objection, ordered the

testimony struck, and admonished the jury to disregard the testimony.         The

district court denied the motion for mistrial.

       The following marshaling instruction (Instruction No. 12) was provided to

the jury:

       You must find the defendant not guilty of Operating a Motor Vehicle
       While Intoxicated, unless the State proves by the evidence beyond
       a reasonable doubt each of the following elements:

              1. That on or about August 17, 2014, the defendant was
       operating a motor vehicle in Story County, lowa; and either

              2. (a) at the time the defendant was under the influence of
       marijuana; or (b) that at the time the defendant had in his body any
       amount of marijuana as measured by the Defendant's urine. It is
       not necessary for all jurors to agree to just (a) or (b). It is only
       necessary that all jurors agree to at least one of the two
       alternatives.

              If you find the State has proven beyond a reasonable doubt
       each one of the elements, then you will find the defendant guilty of
       Operating a Motor Vehicle While Intoxicated; but, if you find the
       State has failed to prove beyond a reasonable doubt one or both of
                                        6


         the elements, then you shall find the defendant not guilty of
         Operating a Motor Vehicle While Intoxicated.

The jury was provided with a general verdict form and found Davis guilty. He

was convicted and sentenced to one year in jail, with all but seven days of the

sentence suspended.

         We first address Davis’s claim that his counsel failed to provide

constitutionally-adequate   representation.    Our    court   reviews   ineffective

assistance of counsel claims de novo. State v. Clay, 824 N.W.2d 488, 494 (Iowa

2012).     Ineffective-assistance-of-counsel claims are normally preserved for

postconviction relief actions. State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005).

This is “particularly true where the challenged actions of counsel implicate trial

tactics or strategy which might be explained in a record fully developed to

address those issues.” State v. Rubino, 602 N.W.2d 558, 563 (Iowa 1999). On

direct appeal, we will only resolve claims when the record is adequate. Clay, 824

N.W.2d at 494. The record is adequate to resolve Davis’s claim in this direct

appeal.

         Davis raises several interrelated claims of ineffective assistance of

counsel. He argues his trial counsel should have challenged the constitutionality

of the statute because it lacks a mens rea component and because there is no

reasonable relationship between the presence of marijuana metabolites in the

body of a motorist and the protection of the driving public. He argues his counsel

should have objected to alternative (2)(b) of the marshaling instruction, which

allowed conviction where “the defendant had in his body any amount of

marijuana as measured by the defendant’s urine.” He argues his counsel should
                                         7


have introduced evidence showing the metabolites present in Davis’s urine were

inactive and incapable of causing impairment. While Davis has packaged and

repackaged his ineffective-assistance-of-counsel claims in several different

boxes, each of the boxes contains the same core argument: section 321J.2 is

unconstitutional to the extent a defendant can be convicted merely for having an

inactive metabolite in his or her urine without proof the defendant had knowledge

of the presence of the metabolite and proof of actual impairment.

       To establish his claim of ineffective assistance of counsel, the defendant

must show that his “trial counsel failed to perform an essential duty and that this

failure resulted in prejudice.” State v. Kress, 636 N.W.2d 12, 20 (Iowa 2001).

The defendant must prove both elements by a preponderance of the evidence,

and if either element is absent, we affirm. Id. To establish trial counsel failed to

perform an essential duty, Davis must establish “the attorney performed below

the standard demanded of a reasonably competent attorney.” See Ledezma v.

State, 626 N.W.2d 134, 142 (Iowa 2001).           The attorney’s performance is

measured against “prevailing professional norms,” and it is presumed the

attorney performed competently.       See id.     The ultimate inquiry regarding

prejudice is whether counsel’s allegedly deficient performance caused a

complete “breakdown in the adversary process” such that the conviction is

unreliable.   See Strickland v. Washington, 466 U.S. 668, 687 (1984).          This

requires a showing “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Collins v. State, 588 N.W.2d 399, 402 (Iowa 1998) (citation and internal quotation

marks omitted). “A reasonable probability is a probability sufficient to undermine
                                          8

confidence in the outcome of the defendant’s trial.” Id. (citation and internal

quotation marks omitted).

       Davis primarily relies on State v. Harris, 322 P.3d 160 (Ariz. 2014). In that

case, the Arizona Supreme Court resolved a question of interpretation regarding

its statute prohibiting driving “while under the influence of . . . any drug.” Harris,

322 P.3d at 160. The court was presented with the question of whether the term

“drug . . . or its metabolite” included “Carboxy-Tetrahydrocannabinol (‘Carboxy-

THC’).” See id. The court reasoned the term “its metabolite” was ambiguous

because it could be singular or plural.        Id. at 162.     If singular, the term

encompassed only Hydroxy-THC, the primary metabolite of cannabis, which is

also the active metabolite of cannabis capable of causing impairment. See id. at

161. If plural, the term “its metabolite” encompassed Carboxy-THC, a secondary

metabolite, which is inactive and incapable of causing impairment. See id. The

court reasoned the latter interpretation would lead to absurd results. See id. at

162 (“The State’s interpretation that ‘its metabolite’ includes any byproduct of a

drug listed in § 13–3401 found in a driver’s system leads to absurd results. . . .

Most notably, this interpretation would create criminal liability regardless of how

long the metabolite remains in the driver’s system or whether it has any impairing

effect.”). The court also reasoned that allowing conviction based on the mere

presence of a metabolite of a controlled substance in the motorist’s blood or

urine without proof of impairment was contrary to the Arizona legislature’s intent

to prevent impaired driving. See id. at 164. The court held “[d]rivers cannot be

convicted of the . . . offense based merely on the presence of a non-impairing

metabolite that may reflect the prior usage of marijuana.” Id.
                                         9

         The defendant’s reliance on Harris is misplaced. The question presented

in this appeal is not whether Carboxy-THC, the metabolite found in the

defendant’s urine, is a “controlled substance.”      See Iowa Code § 321J.1(4)

(defining “controlled substance” to include “any drug, substance, or compound

that is listed in section 124.204 or 124.206, or any metabolite or derivative” of the

same). Instead, the question presented in this appeal is whether Davis’s trial

counsel was ineffective, in the constitutional sense. With respect to the limited

question before this court, we conclude the defendant has failed to prove his

claim.

         The challenges to the statute raised in this appeal were effectively

foreclosed to Davis’s trial counsel. The supreme court has held section 321J.2

allows conviction solely upon proof the defendant had “any amount” of a

controlled substance in his body without regard to whether the defendant was

actually impaired. See State v. Comried, 693 N.W.2d 773, 775 (Iowa 2005)

(“Under these subsections, the State need not prove the defendant was under

the influence-only that he was driving a motor vehicle with a specific amount of

alcohol or drugs in his body. . . .   As to controlled substances, ‘any amount’

violates the statute.”). The supreme court further concluded “the legislature likely

included the ‘any amount’ language in the amendment to create a per se ban.”

Id. at 776.     “We are not at liberty to overrule controlling supreme court

precedent.” State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014).

         This court has concluded the statutory regime survived constitutional

challenge. In State v. Hodges, No. 10-0031, 2011 WL 944378, at *5 (Iowa Ct.

App. Mar. 21, 2011), we held “Hodge’s substantive due process rights were not
                                        10


violated by Iowa Code section 321J.2(1)(c), and thus, his trial counsel did not

render ineffective assistance by failing to challenge the constitutionality of this

section.” In that case, the defendant argued his substantive due process rights

were violated

      because traces of controlled substances can remain in the body
      long after the impairment caused by the substance wears off,
      prohibiting a person from driving with “any amount” of controlled
      substance in his body has no reasonable fit with the statute's
      purpose to protect the public on the roadways from impaired
      drivers.

Id. at *4-5. This is the same argument presented in this case. Similarly, in Loder

v. Iowa Department of Transportation, 622 N.W.2d 513, 516 (Iowa Ct. App.

2000), we concluded:

      The lack of any numerical correlation or direct relationship between
      the amount of marijuana metabolites in a person’s system and the
      impairment of that person’s ability to drive does not foreclose the
      finding that the statute is rationally related to protecting the public.
      The statute is aimed at keeping drivers who are impaired because
      of the use of illegal drugs off the highways. Unlike the blood alcohol
      concentration test used to measure alcohol impairment there is no
      similar test to measure marijuana impairment. There is, though, as
      was used here, a test to measure the use of marijuana, a drug
      illegal in the State of Iowa, in a person’s body. There being no
      reliable indicator of impairment, the legislature could rationally
      decide that the public is best protected by prohibiting one from
      driving who has a measurable amount of marijuana metabolites.

      The Ohio Court of Appeals rejected a similar challenge.          We find the

analysis persuasive:

      Although, Mr. Whalen couches his arguments in terms of
      vagueness and overbreadth, his real quibble seems to be with the
      legislative decision to criminalize driving based upon the presence
      of a marihuana metabolite that may not itself cause impairment.
      Certainly, however, the presence of a marihuana metabolite in
      one’s system indicates that one has used marihuana, an illegal
      drug in Ohio. Furthermore, THC, the active ingredient in marihuana,
      leaves the body relatively quickly. Unlike the case with alcohol
                                        11


       breathalyzer tests, which are commonly administered by police
       during roadside stops, it may take some time before police are able
       to transport and administer a blood or urine test to a suspected
       drugged driver. Accordingly, the legislative decision to include
       marihuana metabolites within the per se prohibition is not
       unreasonable.

State v. Whalen, 991 N.E.2d 738, 743-44 (Ohio Ct. App. 2013).

       “In considering whether counsel’s failure to raise an issue amounts to

ineffective assistance, we have stated that counsel is not required to be a ‘crystal

gazer’ to predict changes in law.” State v. Effler, 769 N.W.2d 880, 897 (Iowa

2009) (citing State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa 1982)); see also

State v. Liddell, 672 N.W.2d 805, 814 (Iowa 2003) (“Counsel need not be a

crystal gazer; it is not necessary to know what the law will become in the future to

provide effective assistance of counsel.”). Nor does counsel have a duty to raise

and relitigate issues already decided. See Effler, 769 N.W.2d at 897. Thus, we

conclude Davis failed to establish his trial counsel breached an essential duty

owed Davis in failing to raise the claims presented in this appeal. See, e.g.,

State v. Smith, No. 07-0915, 2008 WL 4325945, at *2 (Iowa Ct. App. Sept. 17,

2008) (holding counsel was not ineffective in failing to challenge instruction

where the law was well settled).

       We next address Davis’s challenge to the district court’s denial of his

motion for mistrial. Davis contends the district court erred in refusing to grant a

mistrial after Deputy Quinn testified Davis told her he had used crack. Our court

reviews the denial of a motion for mistrial for an abuse of discretion. State v.

Jackson, 587 N.W.2d 764, 766 (Iowa 1998); State v. Keys, 535 N.W.2d 783, 786
                                         12


(Iowa Ct. App. 1995). The district court has broad discretion when ruling on a

motion for a mistrial. Keys, 535 N.W.2d at 785.

       At trial, defense counsel objected to the introduction of evidence regarding

Davis’s past drug use and moved for a mistrial. The district court stated “[t]he

reference to prior drug use is improper, but I don’t feel that rises to the level of

prejudice that would warrant a mistrial at this point and so the question is how do

we deal with it.”    The district court admonished the jurors to disregard the

testimony:

       You have—if you’ve been listening to the deputy’s testimony, there
       was some reference to a drug called crack and it has been
       determined that if there was any reference to the defendant’s use of
       that drug, it was not admitted that he used it recently. It is—you’re
       admonished that you should disregard any reference to the use of
       crack because there is no evidence and there will be no evidence
       to suggest that he was using it at any time near the time of this
       incident and, therefore, he could not have been impaired by that
       drug, so you are to ignore the reference to that drug.

       A “reversal may only be predicated on the proposition that the matter

forbidden by the ruling was so prejudicial that its effect upon the jury could not be

erased by the trial court's admonition.” Jackson, 587 N.W.2d at 766. The court

will consider evidence unfairly prejudicial when it “appeals to the jury's

sympathies, arouses its sense of horror, provokes its instinct to punish, or

triggers other mainsprings of human action that may cause the jury to base its

decision on something other than the established propositions in the case.”

State v. White, 668 N.W.2d 850, 854 (Iowa 2003). “Only in extreme instances

where it is manifest that the prejudicial effect of the evidence on the jury

remained, despite its exclusion, and influenced the jury is the defendant denied a

fair trial and entitled to a [mistrial].” Jackson, 587 N.W.2d at 766.
                                        13


      This is not one of the rare cases in which the district court abused its

discretion in denying the motion for mistrial. Here, the deputy’s testimony was

isolated, defense counsel quickly objected, and the district court struck the

testimony and gave a strong admonition to the jury. “Generally, an admonition to

the jury to disregard inadmissible testimony is sufficient to cure any prejudice.”

State v. Brotherton, 384 N.W.2d 375, 381 (Iowa 1986). “Prompt withdrawal of

testimony that is improper with such an admonition to the jury as was given here

leaves no ground for complaint except in extreme instances where it is manifest

its prejudicial effect remained and influenced the verdict despite its exclusion.”

State v. Johnson, 183 N.W.2d 194, 198 (Iowa 1971). “[W]hen improper evidence

has been promptly stricken and the jury admonished to disregard it, there has

been no erroneous ruling by the district court.” Jackson, 587 N.W.2d at 766.

       Finally, the defendant claims his defense counsel was ineffective in failing

to file a motion in limine to exclude evidence of his past crack use. The evidence

was excluded on trial counsel’s objection. The claim is without merit.

      AFFIRMED.
