                   IN THE COURT OF APPEALS OF IOWA

                                      No. 17-1111
                                  Filed June 6, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

STACY DWAYNE KARR,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Washington County, Myron L.

Gookin, Judge.



      Stacy Karr appeals his conviction for possession of methamphetamine,

third offense. AFFIRMED.



      Mark C. Meyer, Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Doyle and Bower, JJ.
                                           2


VOGEL, Presiding Judge.

       Stacy    Karr    appeals     from     his   conviction    of    possession     of

methamphetamine–third offense, asserting there was insufficient evidence to

support the conviction, the verdict was against the weight of the evidence, the

district court erred by not including a jury instruction on “dominion and control,” and

the district court should have answered a jury question in the presence of Karr and

his counsel. Because Karr’s confession was corroborated by evidence seized by

officers, the evidence was sufficient to support Karr’s conviction. The district court

did not abuse its discretion in denying Karr’s motion for a new trial. Also, the district

court did not err in declining to instruct the jury on “dominion and control” using the

firearm instruction, and Karr failed to preserve error on his claim that the district

court violated his constitutional right to be present at every stage of the

proceedings when it answered a jury question.

   I. Background Facts and Proceedings

       On January 22, 2016, Washington Police officers executed a search

warrant at a residence in Washington. The initial warrant was approved to locate

stolen property from a residential burglary. The residence did not belong to Karr.

In executing the warrant, the officers located four people, including Karr. The

officers located Karr and another individual in a bedroom, along with cash,

methamphetamine, and some drug paraphernalia. Upon discovering drugs, the

officers secured the residence and obtained another search warrant for the drugs

and drug paraphernalia. The officers found a digital scale, a pack of cigarettes

that contained methamphetamine, a glass pipe, and plastic bags or containers

holding methamphetamine.
                                           3


       After securing the residence, Officer Brian VanWilligen advised Karr of his

Miranda rights,1 and Karr indicated he understood his rights. Karr stated he towed

the homeowner’s vehicle to a garage in Iowa City approximately one week prior to

the search, and he stopped by to see the homeowner while he was in town on

another errand. Officer VanWilligen asked Karr if he used methamphetamine prior

to the execution of the search warrant and Karr responded that he had “taken one

toot” from a meth pipe given to him by the homeowner.

       The State charged Karr with possession of a controlled substance,

methamphetamine–third offense, in violation of Iowa Code section 124.104(5)

(2016). Following trial, a jury returned a guilty verdict. Karr filed a motion in arrest

of judgment and for a new trial claiming the State failed to properly instruct the jury

on dominion and control and, therefore, the State failed to prove he actually or

constructively possessed methamphetamine. These motions were denied. Karr

was sentenced to a five-year term of incarceration, with the sentence being

suspended.

       Karr appeals.

    II. Standard of Review

       We review claims of sufficiency of the evidence for errors at law. State v.

Rohm, 609 N.W.2d 504, 509 (Iowa 2000). We will “uphold a finding of guilt if

‘substantial evidence’ supports the verdict.” Id. “‘Substantial evidence’ is evidence

upon which a rational finder of fact could find a defendant guilty beyond a




1
  See Miranda v. Arizona, 384 U.S. 436, 479 (1966) (requiring the police to advise
suspects of their rights under the Fifth and Fourteenth Amendments before beginning a
custodial interrogation).
                                           4

reasonable doubt.” Id. “We generally review rulings on motions for new trial

asserting a verdict is contrary to the weight of the evidence for an abuse of

discretion.” State v. Ary, 877 N.W.2d 686, 706 (Iowa 2016). We review jury

instructions for corrections of errors at law. Alcala v. Marriott Int’l, Inc., 880 N.W.2d

699, 707 (Iowa 2016).

   III. Sufficiency of the Evidence

       Karr asserts there is insufficient evidence to support his conviction for

possession of methamphetamine. He claims his statement that he had “taken one

toot” is insufficient to show he had possession of methamphetamine because

drugs were not found on his person, he was not asked to submit to drug testing,

and any specific pipe he presumably used was not submitted for drug testing.

       To establish possession of a controlled substance, the State must prove a

defendant “exercised dominion and control over the contraband, had knowledge

of the contraband’s presence, and had knowledge the material was a narcotic.”

State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014). This may be established

through actual or constructive possession. State v. Reed, 875 N.W.2d 693, 705

(Iowa 2016) (citation omitted). Actual possession requires the contraband to be

found on the defendant’s person or that “substantial evidence supports a finding it

was on his or her person at one time.” Thomas, 847 N.W.2d at 442 (emphasis

added) (quotation omitted). “In other words, ‘[a]ctual possession may be shown

by direct or circumstantial evidence.’” Id. (quoting State v. Vance, 790 N.W.2d

775, 784 (Iowa 2010)).

       Karr stated to Officer VanWilligen that he had “taken one toot” of

methamphetamine given to him by the homeowner.                In Officer VanWilligen’s
                                          5


fourteen years of experience in law enforcement, he had heard the term “taken

one toot” before and knew it meant Karr “smoked from a methamphetamine pipe.”

Yet, a general confession by the accused standing alone will not warrant a criminal

conviction unless other proof shows the defendant committed the crime. Iowa R.

Crim. P. 2.21(4); State v. Polly, 657 N.W.2d 462, 466 (Iowa 2003).

       Karr’s confession that he had           smoked and thereby possessed

methamphetamine is corroborated by evidence seized during the execution of the

search warrant. In the room where officers located Karr, the officers found plastic

bags or containers that tested positive for methamphetamine. Furthermore, the

officers found a glass plate that contained a white substance and glass pipes that

appeared to have some burnt residue, indicating they had been used. All of this

evidence corroborated Karr’s statement he possessed and had “taken one toot”

of, or smoked, methamphetamine.

       Upon our review of the record, there is sufficient corroborating evidence to

support Karr’s statement he smoked and therefore possessed methamphetamine.

Accordingly, we find there is substantial evidence to support Karr’s conviction for

possession of a controlled substance, methamphetamine–third offense because

Karr possessed methamphetamine “at one time.” Thomas, 847 N.W.2d at 442.

   IV. Weight of the Evidence

       Karr next claims the weight of the evidence does not support the jury’s

verdict and the district court abused its discretion in denying his motion for a new

trial. A motion for a new trial based on the weight of the evidence will be granted

if the district court determines the verdict is contrary to the weight of the evidence

and a miscarriage of justice has occurred. State v. Maxwell, 743 N.W.2d 185, 193
                                          6


(Iowa 2008).     “The weight-of-the-evidence analysis is much broader than a

sufficiency-of-the-evidence analysis in that ‘it involves questions of credibility and

refers to a determination that more credible evidence supports one side than the

other.’” Id. (quoting State v. Nitcher, 720 N.W.2d 547, 559 (Iowa 2006)). A district

court should overturn a jury’s verdict only in extraordinary cases where the

evidence preponderates heavily against the verdict.         State v. Shanahan, 712

N.W.2d 121, 135 (Iowa 2006).

       In its ruling on Karr’s motion for a new trial, the district court considered

Karr’s admission, the evidence found in the bedroom where officers located Karr,

and the credibility of the State’s witnesses. After considering such evidence, the

district court found the evidence did not preponderate heavily against the jury’s

verdict. Upon our review of the record, we agree and find the district court did not

abuse its discretion in denying Karr’s motion for a new trial.

   V. Jury Instruction

       Karr next contends the district court erred in failing to provide his requested

jury instruction. “Iowa law requires a court to give a requested jury instruction if it

correctly states the applicable law and is not embodied in other instructions.”

Alcala, 880 N.W.2d at 707 (citation omitted). Regarding possession, the jury was

instructed:

              The law recognizes several kinds of possession. A person
       may have actual possession or constructive possession. A person
       may have sole or joint possession.
              A person who has direct physical control over a thing on his
       person is in actual possession of it.
              A person who, although not in actual possession, has both the
       power and the intention at a given time to exercise dominion or
       control over a thing, either directly or through another person or
       persons, is in constructive possession of it. A person’s mere
                                            7


       presence at a place where a thing is found or proximity to the thing
       is not enough to support a conclusion that the person possessed the
       thing.
               If one person alone has actual or constructive possession of
       a thing, possession is sole. If two or more persons share actual or
       constructive possession of a thing, possession is joint.
               Whenever the word “possession” is used in these instructions,
       it includes actual as well as constructive possession and sole as well
       as joint possession.

See Iowa Crim. Jury Instructions 200.47. Karr asserts the district court erred when

it declined to include the instruction for dominion and control of a firearm, but with

substituting “controlled substance” for “firearm.” See Iowa Crim. Jury Instructions

2400.9.2    The State asserts additional definitions of terms found in the jury

instructions were unnecessary and Karr’s proposed substituted language in

instruction 2400.9 would confuse the jury. Viewing the instructions the district court

provided to the jury, we find they fairly state the law as applied to the facts of the

case. The instructions given to the jury sufficiently provided what is required for a

person to be in “possession.” In addition, the instruction requested by Karr falls

under Iowa Criminal Jury Instructions chapter 2400, entitled weapons. Because

Karr did not face a weapons charge, Iowa Criminal Jury Instruction 2400.9 is not

applicable and is not made applicable after any language manipulation or

substitution. Accordingly, the district court did not err in declining to instruct the

jury using the firearm instruction.




2
  “‘Dominion and control’ means ownership or right to the [firearm] [offensive weapon] and
the power or authority to manage, regulate or oversee its use.” Iowa Crim. Jury
Instructions 2400.9.
                                             8


    VI. Jury Question

       Karr’s final claim is that the district court violated his constitutional right to

be present during every stage of the trial when it answered a jury question outside

his presence.3 See State v. Shorter, 893 N.W.2d 65, 83 (Iowa 2017) (noting a

criminal defendant has the right to be personally present at every stage of the trial).

“When the rule is violated, prejudice is presumed unless the record shows to the

contrary.” Id. (citing State v. Griffin, 323 N.W.2d 198, 201 (Iowa 1982)). The State

argues Karr failed to preserve error on this issue and also does not raise the issue

as an ineffective-assistance-of-counsel claim.

       “To preserve error for appeal, generally, defendants challenging a guilty

plea must file a motion in arrest of judgment prior to sentencing.” State v. Ortiz,

789 N.W.2d 761, 764 (Iowa 2010). Karr cannot point to any objection he may have

made involving the jury question and the court’s answer, and we note there was

no record made of this proceeding. Only a written record of the question and

answer was produced for the record. Although Karr filed a motion in arrest of

judgment, he did not challenge any procedure regarding how the district court

answered the jury’s question. Because Karr failed to object during the trial, did not

assert this claim in his motion in arrest of judgment and does not also raise the

issue as an ineffective-assistance-of-counsel claim, he has failed to preserve error

on this issue.




3
  The jury asked, “Is Officer [Van]Willigan’s account in court of [Karr’s] confession [to] be
considered testimony, a confession, or testimony of a confession?” The court replied, “In
response to your question, please carefully review Instructions 8 and 9.”
                                           9


   VII.    Conclusion

       Because Karr’s confession was corroborated by evidence seized by

officers, the evidence was sufficient to support Karr’s conviction. The district court

did not abuse its discretion in denying Karr’s motion for a new trial. Also, the district

court did not err in declining to instruct the jury on “dominion and control” using the

firearm instruction.

       AFFIRMED.
