                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0775
                               Filed April 8, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DARRYL CURTIS WALTON,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Clinton County, Joel W. Barrows,

Judge.



       A defendant appeals his conviction of possession with intent to deliver

marijuana and violating Iowa’s drug tax stamp law. AFFIRMED.



       Courtney T. Wilson of Gomez & May, L.L.P., Davenport, for appellant.

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

General, Mike Wolf, County Attorney, and Amanda M. Myers, Assistant County

Attorney, for appellee.



       Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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MULLINS, J.

       Curtis Walton appeals his convictions for possession with intent to deliver

marijuana and violating Iowa’s drug tax stamp law. Walton asserts the district

court abused its discretion in denying his motion for mistrial made after the State

published to the jury a booking sheet that identified the severity of the crime as a

felony. He contends insufficient evidence exists to support his possession of

marijuana at his residence, intent to deliver marijuana on his person, and drug

tax stamp law violations.       Finally, he asserts the district court abused its

discretion in denying his motion for new trial based on newly discovered

evidence. We affirm the rulings of the district court.

I.     Background Facts & Proceedings

       On the afternoon of December 13, 2013, Corporal Galusha of the Clinton

Police Department was dispatched to the residence shared by Curtis Walton and

Gwendolyn Brown. Brown led Galusha into the apartment’s bedroom, opened a

dresser drawer, and pulled out a large baggie she suspected contained

marijuana. Brown subsequently consented to a search of the bedroom, which

produced four empty plastic baggies and a piece of paper containing phone

numbers.

       The large baggie contained two smaller sandwich bags each containing

twenty individually packaged bindles1 of a green leafy substance.               All forty

baggies were cut, tied, and packaged in the same manner. Brown told officers



1
  “Bindle” is a slang term for a folded paper which contains illegal drugs. Definition of
Bindle, The Online Slang Dictionary, http://onlineslangdictionary.com/meaning-definition-
of/bindle (last edited October 14, 2011).
                                          3



their contents belonged to Walton, her boyfriend, who had just left the residence.

Sergeant Wehde affected a traffic stop and apprehended Walton soon thereafter.

       Wehde arrested Walton, and a subsequent search of his vehicle revealed

two cellular phones. At the jail, Walton surrendered $493.20 in cash he had

been carrying. The cash was comprised of thirteen $20 dollar bills, fourteen $10

dollar bills, seventeen $5 dollar bills, eight $1 dollar bills, and two dimes. A strip

search revealed Walton was carrying eight similarly packaged bindles of a green

leafy substance in a larger baggie in his boxers. He told deputies he “bought

weed from a friend.”

       The evidence was subsequently sent to the Division of Criminal

Investigation Criminalistics Laboratory. Technicians confirmed the green leafy

substance in packages from the residence and the packages seized from Walton

at the jail was marijuana. The total net weight of the marijuana seized from

Walton’s residence and person was 53.11 grams and 10.79 grams, respectively.

Technicians lifted two fingerprints from the baggies found in the dresser; neither

belonged to Walton but one belonged to Brown.           Detective Adney searched

Walton’s phones and found nothing of evidentiary value.

       Walton was charged with possession with intent to deliver marijuana, in

violation of Iowa Code section 124.401(1) (2013), and failing to affix a drug

stamp, in violation of Iowa Code sections 453B.3 and 453B.12. Walton pled not

guilty and proceeded to trial, where the classification of Walton’s charge as a

felony was briefly projected on an overhead; the court denied his resultant motion

for mistrial.
                                           4



       Walton was convicted of both offenses on March 12, 2014, and he filed a

motion for new trial on April 30, 2014. His motion was supported by the affidavit

of Brown, who asserted her cousin, Erick Dalton, phoned her on or about March

18, 2014, and confessed to owning the marijuana at her property. The court

denied Walton’s motion, and he now appeals.

II.    Motion for Mistrial

       We do not set aside a trial court’s denial of a motion for mistrial except

upon a clear showing of abuse of discretion. State v. Staker, 220 N.W.2d 613,

617 (Iowa 1974). “We . . . allow trial courts broad discretion in determining

whether to grant a mistrial. Such discretion is a recognition of the trial court’s

better position to appraise the situation in the context of the full trial.” Fry v.

Blauvelt, 818 N.W.2d 123, 132 (Iowa 2012) (citation omitted).

       The bar for finding such an abuse of discretion is high. The facts must

“present an ‘extreme instance’ in which ‘manifest’ prejudice provides sufficient

grounds for a new trial.” Id. (citation omitted). “Evidence is unfairly prejudicial if 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).

       The facts of this case do not satisfy that bar. Walton asserts prejudice

occurred when the State projected Walton’s booking sheet during trial; the sheet

indicated the classification of Walton’s charge was a felony.          He argues this

publication made the jury more likely to convict him for thinking felons are bad
                                         5



people, commit bad acts, and should be punished. The prosecutor asserts the

booking sheet was displayed for less than five minutes, he is “not entirely sure

that [the ’severity‘ line] was even published to the jury,” and Walton’s denial of a

curative instruction is an implicit concession the jurors did not see the severity

line.

        In State v. Wade, the judge who presided over defendant’s previous trial

testified the defendant was sentenced to ten years imprisonment for conviction of

possession of cocaine with intent to deliver. 467 N.W.2d 283, 285 (Iowa 1991).

The Iowa Supreme Court, in finding the trial court did not abuse its discretion in

denying the motion for mistrial, held that “[i]t should come as no great surprise to

a jury that a person convicted of possession of cocaine with intent to deliver

would be sentenced to prison.” Id.

        Because the result of the former judge’s testimony on the jury in Wade is

likely more prejudicial than the effect of the booking sheet here, we do not find

the court’s denial to be so “palpably and grossly violative of fact and logic” as to

warrant an abuse of discretion. State v. Brewer, 247 N.W.2d 205, 211 (Iowa

1976). Our holding is bolstered by the fact that, as the trial court pointed out, the

jury was aware Walton was charged with a “more serious” offense than “simple

possession,” and thus, their discovery that Walton’s charges were classified as a

felony was not so shocking to warrant “manifest prejudice.”

III.    Sufficiency of Evidence

        Sufficiency of evidence claims are reviewed for a correction of errors at

law. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012) (citation omitted). Upon
                                          6



review, we consider all record evidence viewed “in the light most favorable to the

State, including all reasonable inferences that may be fairly drawn from the

evidence.” State v. Keopasaeuth, 645 N.W.2d 637, 640 (Iowa 2002) (citation

omitted). The verdict should be upheld if “substantial record evidence supports

it.”   State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006) (citation omitted).

“Substantial evidence means such evidence as could convince a rational trier of

fact that the defendant is guilty of the crime charged beyond a reasonable doubt.”

State v. LeGear, 346 N.W.2d 21, 23 (Iowa 1984) (citation omitted).

        Whether Walton’s conviction of possession of marijuana is supported by

substantial evidence necessarily depends upon possession. Possession can be

either actual, which occurs when contraband is found on a person, or

constructive, which occurs when the “defendant had knowledge of the controlled

substance as well as the authority or right to control it.” See State v. Kern, 831

N.W.2d 149, 161 (Iowa 2013).

        Walton asserts there is insufficient evidence he exercised dominion and

control over the marijuana at his residence, that without that evidence there is

insufficient evidence of his tax stamp violation, and there is insufficient evidence

of his intent to deliver the marijuana on his person.

        A. Evidence of possession of marijuana at residence.

        Iowa Code section 124.401(1) makes it unlawful for any person “to

manufacture, deliver, or possess with the intent to manufacture or deliver, a

controlled substance,” except as specifically authorized by statute.        As the

marijuana seized from the residence was not on Walton’s person, he was not in
                                        7



actual possession of it.    See id.     The State nevertheless asserts Walton

constructively possessed this marijuana. Knowledge of a substance’s presence

and ability to maintain control over it may be inferred in cases of sole ownership,

but where—as here—the residence is jointly occupied, the State must

demonstrate additional proof, the nature of which includes:

      (1) incriminating statements made by a person; (2) incriminating
      actions of the person upon the police’s discovery of a controlled
      substance among or near the person’s personal belongings; (3) the
      person’s fingerprints on the packages containing the controlled
      substance; and (4) any other circumstances linking the person to
      the controlled substance.

Id. (citation omitted). “These factors are not exclusive, however, and merely act

as a guide.”   State v. Thomas, 847 N.W.2d 438, 443 (Iowa 2014) (citations

omitted).

      The State asserts sufficient evidence exists that Walton constructively

possessed the marijuana in the drawer as only Walton and Brown occupied the

residence, it is unlikely Brown possessed the marijuana because she called the

police and directed them to it, and the marijuana was packaged in a “consistent if

not identical” manner to the marijuana on Walton’s person. Walton asserts the

drawer from which the marijuana was seized was not his exclusively, as

evidenced by the female garments stored within it, and the marijuana packages

contained only Brown’s fingerprints.

      Corporal Galusha testified the marijuana at the residence was packaged

by putting the marijuana in the corner of a sandwich bag, cutting it off, and tying

the bag in a knot. These “corner baggies,” as Detective Adney referred to them,

were packaged inside larger bags. Clinton County Deputy Sheriff Watts, who
                                        8



participated in conducting the strip search at the jail, testified the eight “mini”

marijuana bags seized from Walton’s person were “twisted and tied up pretty

well” and contained within a larger package. This “consistent if not identical”

packaging of the marijuana found on Walton’s person and in the drawer

constituted substantial evidence of a possessive link connecting Walton to both

packages.    Further, Brown had called the police and brought them to the

marijuana, actions by which a reasonable jury could find meant the marijuana

was not Brown’s, but Walton’s. See, e.g., id. (finding that while two people other

than defendant had access to bedroom, their cooperation with police could lead

jury to conclude drugs were defendants).

      Finally, we find neither the presence of Brown’s fingerprints nor her

garments negated the substantial evidence that the marijuana was Walton’s.

Corporal Galusha testified that Brown led her to the bedroom, “opened a dresser

drawer, and pulled out a large baggie.”        A reasonable jury could find the

presence of Brown’s fingerprints was explained by these actions. Additionally,

Brown and Walton shared a one-bedroom apartment that Detective Adney

testified contained both male and female garments, which could diminish the

significance of the presence of female clothes in the dresser to a reasonable jury.

      We accordingly hold that, “[c]onsidering the totality of the evidence in this

case, it is sufficient to raise a fair inference of guilt and generates more than

suspicion, speculation, or conjecture.” Id. at 447 (citation omitted). There was

sufficient evidence from which a jury could find beyond a reasonable doubt that

Walton constructively possessed the marijuana in the drawer.
                                        9



      B. Evidence of possession of marijuana on his person with the intent to

          deliver it.

      Possession with intent to distribute a controlled substance is established

by proof that the defendant knowingly possessed the drug with the intent to

deliver it to another. See Iowa Code § 124.401(1). Walton asserts there was

insufficient evidence he intended to distribute the marijuana on his person

because purchasers of marijuana buy more than one individually wrapped bag at

a time, he possessed less than the general purchase amount, and nothing

incriminating was found on his phones.        The State asserts error was not

preserved on this issue, but that sufficient evidence did exist as the marijuana on

Walton’s person was packaged for street level distribution, the quantity exceeded

that for personal use, Walton did not have drug paraphernalia to facilitate

personal use, and the denominations of cash found on Walton’s person

suggested distribution. We will assume without deciding error was preserved,

and reach the issue.

      “Because it is difficult to prove intent by direct evidence, proof of intent

usually consists of circumstantial evidence and the inferences that can be drawn

from that evidence.” State v. Adams, 554 N.W.2d 686, 692 (Iowa 1996) (citation

omitted). Intent can be inferred from “the amount of the controlled substance . . .

[and] the manner of packaging the drugs.” Id. (citations omitted). In addition,

“the presence of a large sum of unexplained cash in connection with other

evidence of drug trading is probative of the previous occurrence of drug
                                        10



transactions,” and thus, intent to distribute.   United States v. Brett, 872 F.2d

1365, 1370 (8th Cir. 1989) (citation omitted).

       The facts of this case are similar to Adams. The defendant in that case

possessed 4.69 grams of crack cocaine—Walton possessed 10.79 grams of

marijuana—packaged in a plastic sandwich bag. Adams, 554 N.W.2d at 692.

He was arrested with $464.00 in cash on his person—Walton possessed

$493.20 in small denominations—which, coupled with the cocaine packaging, led

police officers to believe the defendant was a drug dealer at the street level. Id.

The Iowa Supreme Court resolved the discrepancy between the large amount of

cash but little cocaine by holding that “[a]lthough one might characterize the

quantity of drugs in this case as relatively small, when combined with the cash

found on Adams, a trier of fact could reasonably infer Adams had already sold a

quantity of drugs, thereby explaining both the small amount of drugs and the

large amount of cash.” Id. The court found substantial evidence to support

defendant’s possession with intent to deliver cocaine conviction. Id.

       In addition to large amount of marijuana in Walton’s possession when

apprehended—which Detective Adney testified was inconsistent with personal

use—we find it significant that the marijuana Walton possessed was in the form

of eight individually wrapped “corner baggies.” Detective Adney testified this

packaging was inconsistent with individual use and was consistent with

distribution, especially given the fact that no drug paraphernalia was discovered

on Walton and the cash he possessed was in the form of small denominations,
                                          11



consistent with the street sale of “dimes” and “dubs.”2          We find substantial

evidence existed here for a reasonable jury to find Walton possessed the

marijuana on his person with the intent to distribute it.

        C. Evidence of Drug Tax Stamp violation.

        “[A] dealer distributing, offering to sell, or possessing taxable substances

without affixing the appropriate stamps, labels, or other official indicia is guilty of

a class “D” felony.” Iowa Code § 453B.12. An accused must be in possession of

42.5 grams of marijuana to be convicted of a tax stamp violation.                   Id.

§ 453B.1(3)(a)(2).

        Walton only challenges one aspect of his tax stamp violation on appeal,

which is that there is insufficient evidence supporting this charge as there is

insufficient evidence he possessed the marijuana at his residence. As we found

there was sufficient evidence Walton constructively possessed the marijuana at

the residence, we find there is sufficient evidence for his tax stamp conviction as

well.

IV.     Motion for a New Trial

        Our standard of review in this case depends upon the grounds asserted

for the new trial and the grounds ruled upon by the court. Ladeburg v. Ray, 508

N.W.2d 694, 696 (Iowa 1993). As the motion for a new trial and ruling are based

on discretionary grounds and not error of law, the trial court’s denial of Walton’s

motion is reviewed for abuse of discretion. Id. “[B]road discretion is particularly

appropriate” in reviewing the trial court’s ruling on a motion for new trial when the


2
 Dimes are ten dollar amounts of marijuana and dubs are twenty dollar amounts of
marijuana.
                                        12



alleged basis is newly-discovered evidence. State v. Miles, 490 N.W.2d 798, 799

(Iowa 1992).

       A motion for new trial based on newly-discovered evidence should be

granted if “the evidence in question (1) was discovered after the verdict, (2) could

not have been discovered earlier in the exercise of due diligence, (3) is material

to the issues in the case and not merely cumulative, and (4) probably would have

changed the result of the trial.” State v. Smith, 573 N.W.2d 14, 21 (Iowa 1997)

(citation omitted); see also Iowa R. Civ. P. 1.1004(7).

       Walton contends he is entitled to a new trial on the grounds that Erick

Dalton, Brown’s cousin, admitted six days after the trial that the marijuana in the

drawer was his property. No affidavit was produced on Erick Dalton’s behalf nor

did he testify at the sentencing hearing when Walton’s motion was considered.

This evidence was presented to the court via Brown’s testimony and affidavit.

       At the hearing, the trial court questioned the likelihood that the new

evidence would change the outcome of the trial and noted that it “seriously

questions the credibility of Ms. Brown’s testimony.” The court denied the motion,

however, on the sole ground that an affidavit that alleges newly discovered

evidence which merely recites hearsay is insufficient to support a motion for new

trial, per State v. Feddersen, 230 N.W.2d 510, 516 (Iowa 1975) (finding that

since defense counsel’s affidavits recited hearsay, they were insufficient to

support a new trial motion on ground of newly discovered evidence).
                                          13



       We agree, and as we find no hearsay exception by which Brown’s affidavit

could withstand the Iowa Supreme Court’s ruling in Feddersen, we find no abuse

of discretion in the trial court’s denial of Walton’s motion.

V.     Conclusion

       We find the publication of the classification of Walton’s charges was not

manifestly prejudicial, and the trial court did not abuse its discretion in denying

Walton’s motion for mistrial on that ground. We further find sufficient evidence in

the record to support all of Walton’s convictions. Finally, we conclude the trial

court did not abuse its discretion in denying Walton’s motion for a new trial based

on newly discovered evidence as the motion was supported only by inadmissible

hearsay. We affirm Walton’s convictions.

       AFFIRMED.
