                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0620
                              Filed March 6, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSEPH EDWARD BREKKE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.



      Joseph Brekke appeals his convictions for operating while intoxicated and

possession of controlled substances. AFFIRMED.




      John C. Heinicke of Kragnes & Associates, PC, Des Moines, for appellant.

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

General, for appellee.




      Considered by Potterfield, P.J., and Tabor and Bower, JJ.
                                            2


BOWER, Judge.

       Joseph Brekke appeals his convictions for operating while intoxicated and

possession of controlled substances. We find substantial evidence supports each

conviction and affirm the district court.

       I.     Background Facts & Proceedings

       Just after 2:00 a.m. on October 3, 2017, law enforcement found Brekke’s

vehicle stopped a few feet into an intersection of two major roads with the engine

running and brake lights on. The officer performed a welfare check when the

vehicle did not move through two green light cycles, and observed Brekke passed

out in the driver’s seat. The officer woke Brekke by knocking on the window and

asked him to step out of the vehicle. Brekke appeared groggy, lethargic, and

confused. The officer smelled alcohol on Brekke and Brekke exhibited signs of an

intoxicated individual, including bloodshot and watery eyes, slurred speech, and

unsteady balance. Brekke admitted to drinking a few beers earlier that night.

Brekke told the officers he took “a lot” of medications including for a bad back and

mental health. Brekke was unable to orient himself and soon claimed he had never

been in the driver’s seat of his car and had been left in the intersection by a friend

when the car ran out of gas. Brekke’s horizontal gaze nystagmus test indicated

intoxication, but he could not complete other field sobriety tests due to a claimed

back injury. He refused to take a preliminary breath test, and, after being read the

implied consent advisory at the police station, refused to submit a breath sample.

       A search of the vehicle yielded three alprazolam pills and two hydrocodone

pills in a cigarette pack cellophane wrapper in the center console. A large amount

of cash was also found in the vehicle. A search of Brekke yielded a cigarette pack
                                             3


containing a credit or debit card with Brekke’s name on it, a folded paper packet

containing a white powdery substance, and a vial with residue of the same

powdery substance. The officers suspected, and testing confirmed, the substance

was cocaine. It appeared Brekke had not cleaned out the vehicle for some time,

and he testified to having owned the vehicle for thirteen years. Brekke’s current

prescription medications were not found in the vehicle.

       Brekke was charged with one count of operating while intoxicated, in

violation of Iowa Code section 321J.2 (2017), and three counts of possession of a

controlled substance—for cocaine, hydrocodone, and alprazolam—in violation of

section 124.401. A jury trial was held March 7 and 8, 2018. Brekke moved for

directed verdict and judgment of acquittal at the close of the State’s evidence,

which the court denied.

       Brekke testified at trial.      He testified that in the past, he had valid

prescriptions for alprazolam and hydrocodone, which had expired in 2010 and

2013, respectively. He testified to having prescriptions for mental-health-related

medications on October 3, but he had not taken them for several days and his

physical signs of intoxication were signs of his withdrawal from the prescriptions.1

Brekke attributed his behavior to various physical ailments, fatigue, suicide

ideation, and emotional trauma from watching a friend shoot himself triggered by

a recent mass shooting. He testified on October 3 he was on his way to the

hospital due to an episode of psychosis. He had a prescription for eye drops but

testified he had not been using them and the drops were not found on him. He


1
  Brekke’s current prescriptions specifically advised to avoid drinking alcohol while taking
the drugs.
                                          4


claimed he picked up an open cigarette pack he found in a gas station bathroom

and put it in his pocket without looking in it, not knowing it had cocaine in it and no

cigarettes. He did not inform the officers of any these claims beyond the physical

ailments, and much of the testimony conflicts with what he told officers that night.

       The motion for judgment of acquittal was renewed and again denied at the

close of the defense’s evidence. The jury returned a guilty verdict on all four

counts. Brekke filed a motion in arrest of judgment and motion for new trial. The

court denied the motions and on April 5 entered judgment and sentenced Brekke.

Brekke appeals, claiming there was not sufficient evidence to support his

conviction on any of the charges.

       II.    Standard of Review

       We review sufficiency-of-the-evidence claims for correction of errors at law.

State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014). We will consider all evidence

in the record, including all reasonable inferences fairly drawn from the evidence,

viewed in the light most favorable to the State. State v. Reed, 875 N.W.2d 693,

704 (Iowa 2016). We will uphold a verdict supported by substantial evidence in

the record. State v. Showens, 845 N.W.2d 436, 440 (Iowa 2014). “Evidence is

substantial when ‘a rational trier of fact could conceivably find the defendant guilty

beyond a reasonable doubt.’” State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016)

(quoting State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997)).

       III.   Analysis

       The jury heard evidence from the two officers who spoke with Brekke the

night of October 3, and viewed dash-cam, body camera, and police station video

of their interactions with Brekke.     The jury also had the opportunity to hear
                                         5


testimony from Brekke and to make credibility determinations regarding the

testimony from the officers and Brekke. A jury is free to believe or disbelieve any

testimony as it chooses and to give as much weight to the evidence as, in its

judgment, such evidence should receive.” State v. Nitcher, 720 N.W.2d 547, 556

(Iowa 2006).

       A.      Operating while intoxicated. Brekke claims he was not intoxicated,

but rather was impaired due to the withdrawal effects of missing mental-health

medications and physical impairments that presented as intoxication. He points to

the lack of physical evidence proving intoxication.

       A defendant may be convicted of operating while either having a blood

alcohol concentration above the statutory amount, or while under the influence of

alcohol or drugs or a combination of the two. State v. Hutton, 796 N.W.2d 898,

904 (Iowa 2011). The jury may consider a defendant’s refusal to submit to the

breath test. See Iowa Code § 321J.16; State v. Massick, 511 N.W.2d 384, 387

(Iowa 1994). Brekke admitted to having multiple alcoholic beverages that night

and stated to officers he was on “a lot” of medications.

       “[T]he determination of whether a person is under the influence of an

alcoholic beverage is focused on the conduct and demeanor of the person . . . .”

Id. A person is “under the influence” when the person has been drinking alcohol

and (1) his reason or mental ability has been affected, (2) he has impaired

judgment, (3) he has visibly excited emotions, or (4) he has lost control of bodily

actions or motions to any extent. State v. Dominguez, 482 N.W.2d 390, 392 (Iowa

1992). The jury may also consider the defendant’s refusal to submit to a chemical

test as evidence of intoxication. See Iowa Code § 321J.16.
                                          6


       Regardless of his blood alcohol concentration and any withdrawal he may

have been experiencing, the videos show Brekke exhibiting several signs of being

under the influence and had admitted to drinking alcohol that night. In particular,

Brekke exhibited difficulty answering officers’ questions, an inability to reason, and

had delayed reactions to officer requests. Based on the evidence before it, the

jury could conceivably find beyond a reasonable doubt that Brekke was under the

influence of alcohol or drugs or a combination of alcohol and drugs. Substantial

evidence supports the jury’s verdict.

       B.     Possession of illegal substance. Brekke claims he picked up an

open cigarette pack in a gas station bathroom and put it in his pocket, not knowing

it contained a vial and paper packet with cocaine. He testified to not knowing how

his debit card then ended up inside the pack with a paper with the cocaine vial and

packet.

       “When the State charges a person with possession, the State must prove

the person exercised dominion and control over the contraband, had knowledge

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

State v. Maxwell, 743 N.W.2d 185, 193 (Iowa 2008). Here, the cocaine was found

in Brekke’s pocket, in a pack of the same type of cigarettes as Brekke smokes,

with Brekke’s debit card. The State proved Brekke’s exclusive dominion and

control of the substance.

       Knowledge of the presence and nature of the substance “can, and because

of their subjective nature often must be, inferred.” State v. Rudd, 454 N.W.2d 570,

571 (Iowa 1990), overruled on other grounds by State v. Webb, 648 N.W.2d 72,

79 (Iowa 2002). A rebuttable inference of knowledge can arise from exclusive
                                        7

possession. State v. Reeves, 209 N.W.2d 18, 23 (Iowa 1973). The jury weighed

Brekke’s exclusive possession and the presence of his debit card in the same pack

as the cocaine against Brekke’s rebutting testimony that he randomly picked up

and pocketed the pack with no idea what was in it.

       We find after weighing the weight of the evidence and determining the

credibility of the witnesses, the jury could reasonably infer Brekke had knowledge

of the presence and nature of the cocaine as well as actual possession of it, and

substantial evidence supports the verdict.

       C.     Possession of prescription medications.            The prescription

medications alprazolam and hydrocodone were found together in Brekke’s vehicle.

Brekke admitted at trial the pills were his. Brekke’s defense to each is he did not

know it was in his vehicle and he could possess the medication due to a past

prescription. The prescription medications were not loose and lost within the

vehicle but were collected together in a single wrapper in the center console of

Brekke’s vehicle.   The jury could reasonably infer Brekke knew of the pills’

presence from his keeping them in a single cellophane wrapper located in the

center console of his vehicle.

       A person may lawfully possess a controlled substance if it was “obtained

directly from, or pursuant to, a valid prescription.” Iowa Code § 124.401(5). To

come within the exception, a defendant must establish “(1) the controlled

substance was obtained pursuant to a valid prescription; (2) the defendant came

into lawful possession of the controlled substance; and (3) the defendant lawfully

possessed the controlled substance for his or her own lawful use pursuant to a

valid prescription.” State v. Gallardo, No. 14-0350, 2015 WL 5278948, at *8 (Iowa
                                          8


Ct. App. Sept. 10, 2015). The State can negate the exception beyond a reasonable

doubt by disproving any of the elements. Id.

       Brekke failed to provide any evidence the pills discovered were remainders

from his past prescriptions.2 In this case, the pills were not found in pharmacy

containers containing information of a valid prescription or in any container used

to assist in tracking medications, nor were they found scattered in Brekke’s vehicle

as if lost. Instead, they were found wrapped together in a clear cellophane wrapper

in the center console within Brekke’s reach. Nothing about the pills or Brekke’s

method and place of storage indicated the pills were left over from his 2010 and

2013 prescriptions. A long-expired prescription for a controlled substance cannot

support the active possession of a prescription medication without some indication

of lawful possession and use.

       We find a reasonable fact finder could find beyond a reasonable doubt

Brekke knew the pills were located in the center console, he did not obtain the

alprazolam and hydrocodone from valid prescriptions for either prescription

medication, and in October 2017 he did not lawfully possess the pills for his lawful

use pursuant to a valid prescription. We affirm Brekke’s convictions for possession

of alprazolam and hydrocodone.

       AFFIRMED.




2
    While Iowa law does not require disposal of outdated prescription medications, the
prohibition on possession of controlled substances means the medications must link
directly to the valid prescription.
