                    IN THE COURT OF APPEALS OF IOWA

                                     No. 12-1875
                                 Filed April 30, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DONTRAYIUS EUGENE CAREY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, James D. Coil,

District Associate Judge.



      Defendant appeals his convictions for possession of a controlled

substance (cocaine) and interference with official acts causing bodily injury.

AFFIRMED.




      Steven J. Drahozal of Drahozal Law Office, P.C., Dubuque, for appellant.

      Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Peter Blink, Assistant

County Attorney, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
                                         2


DANILSON, C.J.

       Dontrayius Carey appeals his convictions for possession of a controlled

substance (cocaine) and interference with official acts causing bodily injury.

Carey contends the district court abused its discretion in denying his motions for

new trial, as both of the jury’s verdicts were contrary to the weight of the

evidence. Specifically, regarding his first conviction, he maintains the weight of

the evidence does not support that he had actual or constructive possession of

the cocaine. As to the second charge, he maintains the weight of the evidence

does not support that he “inflicted” injury on the officer during the struggle.

Because there was circumstantial evidence of actual possession of the drugs,

and there was evidence that Carey inflicted bodily injury while interfering with the

officer’s arrest of Carey, the district court did not abuse its discretion in denying

Carey’s motions for a new trial. We affirm.

I. Background Facts and Proceedings.

       On September 5, 2011, Waterloo Police Officers Matt McGeough and

Mark Nissen were patrolling by car at approximately 9 p.m.             The officers

observed an individual, later learned to be Carey, riding a bicycle without a rear

bike light or bike reflector. The officers followed Carey as he turned onto another

street. The officers observed Carey was riding on the wrong side of the road. As

they continued to follow him, Carey drove his bike through an intersection without

stopping at the stop sign.

       Officer Nissen then activated the emergency lights on the vehicle to

initiate a stop of Carey. When Carey continued riding the bike, Officer Nissen

blew an air horn three times. Carey continued to ride. The officers then pulled
                                        3


the patrol car next to Carey and ordered him to stop. Carey pulled to the side of

the road and stopped his bicycle. The officers exited the car, noting that Carey

had both of his hands in the front pocket of his hooded sweatshirt. Officer Nissen

issued multiple orders to Carey to “get your hands out” and “get your hands up,”

but Carey continued “digging” in his pocket.     Officer McGeough testified that

Carey’s failure to comply with Officer Nissen’s orders was a safety concern and

indicated to him that Carey may have a weapon.

      Officer McGeough stepped in and grabbed Carey’s right arm.           Carey

resisted by trying to pull his arm away. During the ongoing struggle between

Carey and Officer McGeough, both ended up on the ground with Carey laying

prone against the cement. Officer McGeough continued trying to remove Carey’s

hand from his pocket while Carey resisted. As a result of the struggle, Officer

McGeough sustained abrasions on his knuckles, wrist, and elbow.

      Because Carey still refused to comply with orders, Officer Nissen sprayed

Carey with pepper spray. Carey then became compliant and was handcuffed.

Carey was taken to the front of the police car and searched. The police did not

find any evidence on Carey.

      During the struggle, Officer Nissen called for backup. The backup officers,

including Officer Frein, arrived while Carey was being searched.            Using

flashlights because of the dimness of the light upon the street, the officers

searched the area of the struggle for evidence. Officer Frein discovered a small

plastic bag containing a white substance, later confirmed to be cocaine. The bag

was clean and free of debris although the street was covered in sand and had oil
                                         4


spots. Officer McGeough also located a cell phone in the area, which Carey

admitted was his. The officers did not see Carey drop the phone.

       Carey was charged with possession of a controlled substance (cocaine)

and interference with official acts causing bodily injury. After a jury trial, he was

found guilty of both counts.

       Carey filed a motion for new trial. A hearing on the motion was held

August 29, 2013. The district court denied the motion in a written order filed

September 13, 2013. Carey appeals.

II. Standard of Review.

       The district court has broad discretion in ruling on a motion for new trial,

and thus, our review is for an abuse of discretion. State v. Nichter, 720 N.W.2d

547, 559 (Iowa 2006). To establish such an abuse, the challenger must show

that the district court exercised its discretion on grounds or for reasons clearly

untenable or to an extent clearly unreasonable. State v. Reeves, 670 N.W.2d

199, 202 (Iowa 2003). We are slower to interfere with the grant of a new trial

than with its denial. Iowa R. App. P. 6.904(3)(d).

III. Discussion.

       A district court may grant a new trial where a verdict rendered by a jury is

contrary to law or evidence. Iowa R. Crim. P. 2.24(2)(b)(6). “[C]ontrary to . . .

evidence” means “contrary to the weight of the evidence.” Reeves, 720 N.W.2d

at 201. In our review, we limit ourselves to the question of whether the trial court

abused its discretion; we do not consider the underlying question of whether the

verdict is against the weight of the evidence. Id. at 203.
                                            5


       A. Possession of a Controlled Substance.

       Carey maintains the weight of the evidence did not support a finding he

was in actual possession1 of the cocaine found on the street. We disagree.

       Actual possession may be shown by direct or circumstantial evidence.

Vance, 790 N.W.2d at 784. “Circumstantial evidence is equally probative as

direct evidence for the State to prove a defendant guilty beyond a reasonable

doubt.” State v. Brubaker, 805 N.W.2d 164, 172 (Iowa 2011).

       Carey relies upon the principle that “mere proximity to where the drugs are

found is not enough to show constructive possession.” State v. Cashew, 666

N.W.2d 566, 572–73 (Iowa 2003). However, the State does not contend that

Carey had constructive possession of the drugs as they laid upon the streets.

Rather, the State claims the circumstantial evidence proved that Carey had

actual possession of the drugs before his encounter with the law enforcement

officers.

       Here, Carey initially refused pull over when Officers Nissen and

McGeough initiated a stop. Even after pulling over, he refused to remove his

hands from his pocket, continuing to “dig around” rather than comply with the

officers’ orders. Carey struggled against Officer McGeough when he tried to

remove Carey’s hand from Carey’s pocket.              After Carey was subdued, the

officers located the bag of cocaine in the vicinity of the struggle. It was clean

although it was located in an area where a car’s tire was likely to run over it and


1
  The jury instruction regarding actual possession advised, “A person who has direct
physical control over a thing on his person is in actual possession of it.” It can be shown
by circumstantial evidence that a person at one time had actual possession of the
contraband. See State v. Vance, 790 N.W.2d 775, 784 (Iowa 2010).
                                           6


the area of the street it was found on was dirty. Carey was the only civilian on

the street between the time he pulled over and when the cocaine was found.

Neither Officer Nissen nor Officer McGeough saw Carey drop or discard his cell

phone. Notwithstanding, the officers also found a cell phone in the vicinity of the

struggle, which Carey admitted was his. The jury could have concluded under

these facts that the drugs, like the cell phone, were also in Carey’s possession

before the encounter.

       “Except in the extraordinary case, where the evidence preponderates

heavily against the verdict, trial courts should not lessen the jury’s role as the

primary trier of facts and invoke their power to grant a new trial.”      State v.

Shanahan, 712 N.W.2d 121, 135 (Iowa 2006).           The circumstantial evidence

supports the jury’s finding, and the district court did not abuse its discretion in

overruling Carey’s motion for new trial.

       B. Interference with Official Acts Causing Bodily Injury.

       Carey also maintains the weight of the evidence does not support the

jury’s guilty verdict of interference with official acts inflicting bodily injury.

Specifically, Carey challenged the finding he inflicted Officer McGeough’s bodily

injuries. In support of his contention, Carey relies on our unpublished opinion,

State v. Dudley, No. 11-0413, 2012 WL 170738, at *5 (Iowa Ct. App. Jan. 19,

2012), in which we stated, “The State was required to prove more than that [the

defendant’s] resistance resulted in bodily injury. The State was required to show

some affirmative action by [the defendant] directed at the officer caused the

officer bodily injury.”
                                          7


      The facts in the present case are readily distinguishable from those in

Dudley. In Dudley, the defendant was riding his bicycle without a headlight.

2012 WL 170738, at *1. The officer intended to inform the defendant it was

against a city ordinance to do so and asked the defendant to stop. Id. When the

defendant continued to ride past the officer without stopping, the officer grabbed

the defendant’s arm and tackled him while on the moving bicycle. Id. As a result

of tackling the defendant, the officer suffered an abrasion to his knee. Id. Our

court vacated the defendant’s conviction for interference with official acts

inflicting injury, “noting the language chosen [in the statute] conveys the idea of

‘active interference’” by the defendant. Id. at *4 (quoting State v. Smithson, 594

N.W.2d 1, 2–3 (Iowa 1999)).

      In its order denying Carey’s motion for new trial, the district court stated:

      In [Dudley], the Court of Appeals determined that the act of fleeing
      the officer, while an intentional act, did not “inflict” the injury to the
      officer but rather it was the officer’s acts which were the cause of
      his injuries. In the instant case, the defendant’s act of struggling
      with officers was also an intentional act, which [ ] did inflict the
      injuries to Officer McGeough. . . . The [S]tate does not have to
      prove that the defendant specifically intended to cause injury to
      McGeough but rather that his intentional act of struggling with
      McGeough was the causative factor in McGeough’s injuries.

We agree. The district court did not abuse its discretion in denying Carey’s

motion for new trial. We affirm.

      AFFIRMED.
