                    IN THE COURT OF APPEALS OF IOWA

                                      No. 13-1997
                                 Filed March 11, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TAQUALA MONIQUE HOWSE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Jeffrey Harris,

District Associate Judge.



      Taquala Howse appeals her conviction of carrying weapons, an

aggravated misdemeanor, in violation of Iowa Code section 724.4 (2011).

REVERSED.




      John Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Emily Zerkel, Assistant

County Attorney, for appellee.



      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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DANILSON, C.J.

       Taquala Monique Howse appeals her conviction for carrying weapons, an

aggravated misdemeanor in violation of Iowa Code section 724.4 (2011). She

contends the stun gun found in her purse does not qualify as a dangerous

weapon and thus her conviction cannot stand.          By statutory definition, “any

portable device or weapon directing an electric current, impulse, wave, or beam

that produces a high-voltage pulse designed to immobilize a person” is a

“dangerous weapon.” Iowa Code § 702.7. Because the record does not contain

evidence that the stun gun found in the defendant’s purse “produces a high-

voltage pulse designed to immobilize a person,” we reverse her conviction.

       I. Background Facts and Proceedings.

       On June 23, 2013, police responded to a report of a theft at a Waterloo

store. Howse was identified as a suspect and arrested. She was handcuffed,

escorted by police to a squad car, and searched. Officer Kyle Jurgensen found a

“small hand-held stun gun” in Howse’s purse, which Howse stated she had

purchased. She stated she “carried it to clubs and whatnot.” When asked if she

had a permit to carry the stun gun she said “no.” Howse was charged with

carrying weapons.

       At the bench trial, Officer Jurgensen testified a stun gun emits an electrical

current and is able to incapacitate someone. He testified the stun gun found in

Howse’s purse “appeared to be all there—all the components of a stun gun.” He

had not tested the stun gun however. When asked why, he stated: “A stun gun,

to me, is dangerous. I didn’t know the condition or maintenance the defendant

has done with her stun gun, so I didn’t want to test it in my hand.”
                                         3


       The court asked, “Depending on the physiology of the victim and the

number of times a stun gun might be administered, would a stun gun be capable

of administering serious bodily injury and/or death?” Officer Jurgensen testified a

stun gun is capable of administering serious bodily injury and, perhaps death

under certain circumstances: “I mean, there would have to be some prior

conditions to that. . . . You know, depends if there’s drugs in the system, heart

conditions.   I mean, you know, environment, everything plays a factor.”          He

stated that such devices were designed to incapacitate a person, though “there

has been documented deaths using Tasers and stun guns, but like I said, there

have been other preconditions. I mean, stun guns and Tasers were not put on

the market to kill people.”

       Officer Greg Erie, a field training officer, defensive tactics instructor, and

Taser instructor with the Waterloo Police Department, testified he had previously

examined the stun gun and “if it functioned properly” it would emit an electrical

current. He testified that if one was touched with a stun gun, “it is just like being

electrocuted.” He also testified that officers are taught to avoid the head and

neck area when employing their stun guns because of foreseeable injuries. He

distinguished a taser from a stun gun stating a taser will immobilize a person. He

described the function of a stun gun as a “compliance tool”—once an individual

feels the shock they jump back. Officer Erie also testified he did not “have any

background with this one,” did not know how many volts this device emitted, and

“couldn’t get [this device] to work.”

       In closing, the State argued it had proved the three elements of the

offense, that is,
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       First, the state has established proof beyond a reasonable doubt
       that the defendant violated all three elements of the offense of
       Carrying Weapons and that on or about June 23rd, 2013, the
       defendant was armed with a stun gun. The stun gun was
       concealed on or about the defendant’s person, and the stun gun
       was a dangerous weapon.
               ....
               . . . [R]egarding the third element and the fighting issue in
       this case, the state offered proof that a stun gun is a dangerous
       weapon. The defendant herself admitted she carried the stun gun
       for purposes of defending against attack. Officer Jurgensen
       testified that he did not test the weapon, because it would be
       dangerous to do so, as well as the specialist, Greg Erie, testified
       that such a device is used for training police officers, and that it has
       the possibility of inflicting pain and injury on individuals.

       The prosecutor quoted section 702.7, which defines a dangerous weapon

as including “any portable device or weapon directing an electrical current,

impulse, wave, or beam that produces a high-voltage pulse designed to

immobilize a person.” The prosecutor argued, “By so construing the language of

the statute, quote, ‘the legislature sought to establish a broad, flexible definition

of “dangerous weapons,”’ as recognized by Justice Cady in State v. Pearson,

547 N.W.2d 236, and that’s Iowa 1996.” She added the anticipated defense

argument that the device was inoperable was “not determinative,” citing State v.

Hemminger. See 308 N.W.2d 17, 20 (Iowa 1981) (“The definition of ‘dangerous

weapon’ goes to the character of the instrument utilized. Thus, working condition

should never be an issue where the instrument employed has the character of a

dangerous weapon.” (internal citation omitted)).

       Defense counsel countered with a “twofold” argument: first, “that in order

to be convicted of Carrying Weapons or carrying a concealed stun gun, the

State’s got to show, first of all, that this is a stun gun which produces a high-

voltage pulse designed to immobilize a person.” And secondly, “the State [must]
                                         5


prove that the device is capable of inflicting death when used in the manner for

which it was designed.”

        On December 5, 2013, the district court issued its ruling, which provides in

part:

                3. Under the terms of section 702.7 Code of Iowa,
        “dangerous weapons” include “any portable device or weapon
        directing an electric current, pulse, wave or beam that produces a
        high-voltage pulse designed to immobilize a person.” The State of
        Iowa has no affirmative burden to produce evidence as to how
        much high voltage a particular device will emit or produce.
                4. The Iowa legislature has acknowledged the dangerous
        nature of taser and/or stun gun . . . .
                5. The court must look to the appellate decisions which
        address the “dangerous weapon” language of section 702.7 Code
        of Iowa as it involves loaded and unloaded revolvers for guidance
        as well as the sole appellate decision involving an employed stun
        gun, State v. Geier, 484 N.W.2d 167 (Iowa 1992), cited by the
        parties as authority.
                6. The court accords significant weight to the “capability
        requirement” outlined in the Iowa Supreme Court decision issued in
        State v. Nichols, 276 N.W.2d 416 (Iowa 1979).
                7. Serious injury and/or death can be inflicted by a stun gun
        administered to a person who is vulnerable because of a weakened
        heart; heart condition; or drugs in the victim’s system. As such,
        serious injury and/or death can come based upon the following:
                       a. administration of the stun to the head or neck of a
                potentially vulnerable victim;
                       b. prolonged administration of the stun gun to the
                head or neck of a victim;
                       c. a victim’s prior condition(s) that would make
                him/her vulnerable to the stun.
                8. Based upon the credible matters presented, the court
        finds that the State of Iowa has presented substantial evidence to
        establish the essential elements of the charged offense beyond a
        reasonable doubt.

Howse appeals.
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       II. Scope and Standard of Review.

       “To the extent our review . . . requires us to interpret the meaning and

scope of a particular statute, our review is for correction of errors at law.” State

v. Anspach, 627 N.W.2d 227, 231 (Iowa 2001); accord State v. Romer, 832

N.W.2d 169, 174 (Iowa 2013).

       “When reviewing such issues we are not bound by the trial court’s
       determinations of law.” Where the defendant also challenges the
       sufficiency of the evidence to support his conviction under the
       statute, “we review the evidence to determine whether a rational
       trier of fact could have found the defendant guilty of the offense
       charged” beyond a reasonable doubt. Thus, our review of all the
       evidence in the record is made in a light most favorable to the
       State.

Anspach, 627 N.W.2d at 231 (citations omitted); see also State v. Jorgensen,

758 N.W.2d 830, 834 (Iowa 2008).

       III. Discussion.

       Iowa Code section 724.4(1) provides, “Except as otherwise provided in

this section, a person who goes armed with a dangerous weapon concealed on

or about the person . . . commits an aggravated misdemeanor.”

       On appeal, Howse contends that as a matter of law or fact the stun gun

found in her purse does not qualify as a “dangerous weapon” under section

702.7, and thus her conviction is not supported by substantial evidence.1




1
   We reject the State’s preservation-of-error argument, which promotes form over
substance. It is true, “[w]e do not review issues that have not been raised or decided by
the district court.” State v. Dewitt, 811 N.W.2d 460, 467 (Iowa 2012). The State’s
complaint that rules of preservation must be upheld or the State is “unfairly hamstr[ung]”
and “blindside[d]” ring hollow here. Whether addressed as a matter of statutory
interpretation or sufficiency of the evidence, the question argued and decided by the trial
court is whether the stun gun found in Howse’s purse comes within the statutory
definition of a “dangerous weapon.”
                                           7


         Iowa Code section 702.7 defines dangerous weapons.           That provision

reads:

                A “dangerous weapon” is any instrument or device designed
         primarily for use in inflicting death or injury upon a human being or
         animal, and which is capable of inflicting death upon a human being
         when used in the manner for which it was designed, except a bow
         and arrow when possessed and used for hunting or any other
         lawful purpose. Additionally, any instrument or device of any sort
         whatsoever which is actually used in such a manner as to indicate
         that the defendant intends to inflict death or serious injury upon the
         other, and which, when so used, is capable of inflicting death upon
         a human being, is a dangerous weapon. Dangerous weapons
         include but are not limited to any offensive weapon, pistol, revolver,
         or other firearm, dagger, razor, stiletto, switchblade knife, knife
         having a blade exceeding five inches in length, or any portable
         device or weapon directing an electric current, impulse, wave, or
         beam that produces a high-voltage pulse designed to immobilize a
         person.

         Section 702.7 thus provides three paths by which a weapon may be

deemed dangerous: (1) a device which is “designed primarily for use in inflicting

death or injury upon a human being or animal, and which is capable of inflicting

death upon a human being when used in the manner for which it was designed”

(but excepting a bow and arrow under certain circumstances); (2) a device

“which is actually used in such a manner as to indicate that the defendant intends

to inflict death or serious injury upon the other, and which, when so used, is

capable of inflicting death upon a human being, is a dangerous weapon”; and

(3) devices listed that are statutorily determined to be dangerous weapons per

se, one of which is “any portable device or weapon directing an electric current,

impulse, wave, or beam that produces a high-voltage pulse designed to

immobilize a person.” Only the first and third are relevant to the case at hand;

the second requires a device that is actually used, which has no bearing here.
                                           8

       In Geier, 484 N.W.2d at 171-72, the supreme court considered whether a

stun gun fell within the definition of a “dangerous weapon” pursuant to the first

path noted above (designed primarily for use in inflicting death or injury and

which is capable of inflicting death) and concluded “there was sufficient evidence

adduced at trial to convince a rational trier of fact that a stun gun is a ‘dangerous

weapon’ under the aforementioned statutory definition.” The court noted:

       Deputy Muir testified that the stun gun uses a nine volt battery to
       create an arc of electricity that ranges from 30,000 volts up to
       65,000 volts thereby imparting a shock to the recipient. Clearly, a
       shock resulting from an electric charge that may range as high as
       65,000 volts is a “device designed primarily for use in inflicting . . .
       injury,” which is described by the Model Penal Code as “physical
       pain . . . or an impairment of physical condition.” . . . Deputy Muir
       also indicated that the stun gun is capable of causing death if used
       in the head or neck region. Deputy Muir’s testimony exceeds the
       threshold necessary to sustain the court’s finding that a stun gun is
       a “dangerous weapon” as that term is defined in section 702.7.

Geier, 484 N.W.2d at 171.

       The trial court here found that generally a stun gun is capable of causing

death. But unlike the evidence presented in Geier, there was no evidence as to

the power of the stun gun here. Officer Jurgensen did not test the stun gun, and

Officer Erie specifically stated he had no background with this particular small

stun gun and he “couldn’t get it to work.”          Without some evidence of the

capabilities of this particular stun gun, there is not substantial evidence to support

a finding that it was “designed primarily for use in inflicting . . . injury” as was the

case in Geier. Consequently, unless the evidence supports a finding that the

stun gun was a dangerous weapon per se under the third path of section 702.7,

Howse’s conviction cannot stand.
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      After Geier was decided, the legislature amended the list of per se

dangerous weapons to included “any portable device or weapon directing an

electric current, pulse, wave or beam that produces a high-voltage pulse

designed to immobilize a person.” While we might agree in principle with the trial

court that the State is not required to “produce evidence as to how much high

voltage a particular device will emit or produce,” we do conclude that to qualify

under the per se dangerous weapons listing, there must be some evidence the

device “produces a high-voltage pulse designed to immobilize a person.” Here,

the State’s witnesses’ testimony related to stun guns in general not this specific

device. Nothing in this record establishes, even in general terms, the voltage of

the device at issue—high, low, or in-between, and if it had sufficient voltage to

immobilize a person.

      We conclude there is not substantial evidence in this record to sustain the

conviction. We therefore reverse.

      REVERSED.
