                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1683
                            Filed November 26, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES LAVERN PENISKA,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Pottawattamie County, Kathleen A.

Kilnoski (motion to suppress) and Timothy O’Grady (trial), Judges.



       James     Peniska    appeals    his   convictions    of   possession     of

methamphetamine exceeding five grams with intent to deliver, failure to affix a

dug tax stamp, and possession of marijuana. AFFIRMED.




       Patrick A. Sondag of Sondag Law Office, Council Bluffs, for appellant.

       Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, Matthew Wilber, County Attorney, and Shelly Sedlak, Assistant County

Attorney, for appellee.



       Considered by Danilson, C.J., and Doyle and Tabor, JJ.
                                          2


DANILSON, C.J.

       James Peniska appeals, following a jury trial, claiming his convictions of

possession of methamphetamine exceeding five grams with intent to deliver,

failure to affix a dug tax stamp, and possession of marijuana are not supported

by substantial evidence that he possessed the drugs. He contends the trial court

erred in denying his motion to suppress evidence and in denying his requested

jury instruction. He also argues the convictions are contrary to the weight of the

evidence.    We affirm because the officers had probable cause to search

Peniska’s vehicle, substantial evidence supports the jury’s finding that Peniska

constructively possessed the drugs found in the vehicle, the evidence did not

heavily preponderate against the convictions, and the district court did not abuse

its discretion in giving the standard jury instruction on possession.

I. Motion to Suppress.

       We review de novo the ruling on the motion to suppress based on alleged

constitutional violations. State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005). “We

evaluate the totality of the circumstances found in the record. In our review of

the suppression ruling, we consider not only the evidence at the suppression

hearing but also the evidence at trial.” Id. (citations omitted). Because the trial

court was in a better position to assess the credibility of the witnesses, we give

weight to its fact findings but are not bound by them. Id.

       A warrantless search is per se unreasonable unless it falls within a

recognized exception. Carter, 696 N.W.2d at 37. A search based on probable

cause and exigent circumstances is one such exception.              See id. (noting
                                             3


“[e]xigency exists when the vehicle is mobile and its contents may never be

found again if a warrant must be obtained” (citation and alterations omitted)).1

         The Carter court observed,

                 A police officer has probable cause to search a motor
         vehicle when the facts and circumstances would lead a reasonably
         prudent person to believe that the vehicle contains contraband.
         The facts and circumstances upon which a finding of probable
         cause is based include the sum total and the synthesis of what the
         police officer has heard, what the officer knows, and what the
         officer observes as a trained officer.

Id. (citations and alterations omitted).

         Peniska challenges the trial court’s finding of probable cause.

         Here, around 11:30 p.m. on June 22, 2012, Council Bluffs Police Officer

Nathan Powles had stopped at Eddy’s, a gas station and convenience store.

One of the store clerks, Elizabeth Kay, approached the officer, stating there were

two women on the lot who would not leave the premises despite being asked

several times.      Kay stated the women had pumped gas into a white Jeep

Cherokee and were asking other customers for money so that they could buy

gas.

         Officer Powles approached the white Jeep and encountered one of the

women, Sunny Boege. At some point, Officer Powles called dispatch requesting

a backup officer. Boege told the officer they had been waiting at the station until

their friend got there to give them money for gas. She then indicated across the

same “island” to a man (later determined to be Peniska) putting gas into a red

Ford Mustang. The trunk of the Mustang was open. Officer Powles asked for

Boege’s identification. She did not have a valid driver’s license. A background

1
    Peniska does not challenge the existence of exigent circumstances.
                                       4


check found neither she nor the other woman had any warrants outstanding.

While Officer Powles was checking the women’s identification, both women had

gone to stand near Peniska by the Mustang.

      Officer Powles then approached Peniska, who was now seated in the front

passenger side of the Mustang, with his feet outside the door. The door was

open and Peniska’s left hand was down by the seat. Officer Powles testified that

Peniska appeared to be hiding something. He asked Peniska several times to

show him his hands. Officer Powles stated it took “multiple” commands before

Peniska complied. Peniska finally stood up, and Officer Powles had him step to

the rear of the Mustang. Officer Powles asked Peniska for his identification.

Peniska showed him a Nebraska identification card but he did not have a driver’s

license. When Officer Powles asked Peniska how he had arrived at the gas

station, Peniska responded he had driven.      Officer Powles ran a check of

Peniska’s identification. Sergeant Darren Budd had arrived in response the call

for back up.

      Officer Powles returned to the red Mustang, looked inside the open

passenger door, and saw a bundle of small, one-inch by one-inch, blue plastic

bags on the passenger floorboard.      The bags were fastened with a band.

Although possession of this type of plastic bag is not illegal, Officer Powles

testified that in his experience, the small bags were a size “consistent with

narcotics use or possession.”   Officer Powles reached into the Mustang and

picked up the bags. Boege interrupted and said, “Hey, you can’t do that.” She

was placed under arrest.
                                        5


      Officer Powles showed Sergeant Budd the plastic bags and told him to

search the Mustang. Officer Powles testified:

             A. Then once Officer Budd arrived, I walked up and looked in
      the car on the passenger’s side, saw a bundle of baggies wrapped
      in a rubber band.
             Q. When you say that you looked in the vehicle, was the
      passenger door still open? A. It was, yes.
             Q. And you stated that you located a bundle of baggies.
      Where in the vehicle would you say those were located?
      A. Passenger floorboard.
             Q. Was it in the area that Mr. Peniska had his hands earlier?
      A. Yes. His left hand would have been in the general area.
             Q. Did you see anybody else in the vehicle but Mr. Peniska?
      A. No.
             Q. Based on what you observed in the vehicle, what did you
      do next? A. Instructed Officer Budd to search the vehicle.
             Q. And why did you do that? A. Based on his movements
      and the finding of the baggies.
             Q. And based on your training and experience, what did you
      believe those baggies were related to? A. Consistent with narcotics
      use or possession.

      Sergeant Budd also testified these types of bags “are typically associated

with drugs.” Inside the Mustang, Sergeant Budd found a container in the open

console of the Mustang. The container had two bags with suspected narcotics:

one that field tested positive for marijuana and one that field tested positive for

methamphetamine.      Inside the console, Officer Budd located a larger bag of

suspected methamphetamine, which later testing confirmed.

      Considering the totality of the circumstances—including Boege’s claim

that Peniska was there to assist her, Boege moving near Peniska’s car while

Officer Powles checked her identification, Peniska’s sitting on the passenger side

of his vehicle and his left-hand movements in front of the seat, Peniska’s refusal

to show his hand to the officer, Peniska’s operation of the motor vehicle with only

an identification card, Peniska’s lack of cooperation in exiting the motor vehicle,
                                          6


and the officer’s plain view observation of a bundle of plastic bags generally

associated with narcotics use—we find the State proved by a preponderance of

the evidence that Officer Powles had probable cause to believe that contraband

would be found in Peniska’s vehicle. We therefore affirm the denial of his motion

to suppress.

II. Sufficiency and Weight of the Evidence.

       Peniska contends there was not sufficient evidence to support the jury’s

finding that he possessed the methamphetamine and marijuana found in his

vehicle to sustain the convictions.

               We review sufficiency-of-the-evidence claims for correction
       of errors at law. We uphold a verdict if substantial evidence
       supports it. “Evidence is substantial if it would convince a rational
       fact finder that the defendant is guilty beyond a reasonable doubt.”
       Substantial evidence must do more than raise suspicion or
       speculation. We consider all record evidence not just the evidence
       supporting guilt when we make sufficiency-of-the-evidence
       determinations. However, in making such determinations, we also
       view the “evidence in the light most favorable to the State, including
       legitimate inferences and presumptions that may fairly and
       reasonably be deduced from the record evidence.”

State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005) (citations omitted).

       “We will uphold a verdict if substantial record evidence supports it.” State

v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006) (citation and quotation marks

omitted).   “Evidence is considered substantial if, viewed in the light most

favorable to the State, it can convince a rational jury that the defendant is guilty

beyond a reasonable doubt.” Id. “‘Inherent in our standard of review of jury

verdicts in criminal cases is the recognition that the jury was free to reject certain

evidence, and credit other evidence.’” Id. (citation omitted).
                                         7


      At trial, the jury was played the audio recording of Boege’s statements

when she was placed in Officer Powles’ vehicle.         On that recording, Boege

repeatedly states that any drugs found in the red Mustang were hers and not

Peniska’s. She also claimed the two glass pipes found in a black drawstring bag

in the white Jeep were hers. One of the pipes had white residue consistent with

methamphetamine use. The other pipe was inside a sock wrapped with a band

similar to the band around the empty plastic bags in the red Mustang.

      Boege testified at Peniska’s trial. She explained she and Peniska were

involved in an intimate relationship, which they kept secret from the woman with

whom Peniska lived. On June 22, 2012,

      I was trying to see him, because I hadn’t seen him for a couple
      months, so we were going to meet at the gas station by the casino,
      he was going to bring me some money for food, and he was going
      to put gas in my friend’s car for bringing me there.

Boege stated Peniska did not come at the arranged time, so she and the woman

who had given her a ride, Shardee Sysel, had to wait for about an hour at the

station. While they waited, they asked people for money for cigarettes. Boege

testified that when Peniska arrived, she leaned into his car “to get a kiss” but got

yelled at because she smelled like cigarettes and that Peniska gave her twenty

dollars and “we proceeded to pump gas while he was sitting in the passenger

side of the car.” Boege testified she then moved the gas nozzle from her friend’s

Jeep to Peniska’s car and “there was a Council Bluffs police officer.”         She

testified she warned Peniska “we got some company.”

      She testified:

      They continued to search the Jeep and the Mustang. They found
      something. They put me in cuffs for the dope pipe, put me in the
                                       8


      back of the car. They had him [Peniska] in the back of the car.
      And Shardee [the driver of the Jeep] was still out talking to the
      cops, and they came up to the car, and once they came up to the
      car, I told them everything they found was mine.
              Q. And you told the officer that came up to you that? A. Yes,
      ma’am.
              Q. And when you said everything was yours, what did you
      mean? A. Anything they found. I didn’t know what they found. I
      just said anything you found was mine.
              Q. And why did you do that? A. Because Jamie [Peniska]
      has done a lot for me, and I was scared he was going to lose
      everything, including his business . . . . I loved him.
              Q. Did he take care of you? A. Yes, ma’am.
              ....
              Q. When you told the police officers that everything in the
      vehicle was yours, do you know what they found? A. No, ma’am.
              Q. Do you know where the items were located? A. No,
      ma’am.
              ....
              Q. And then what happened? A. They asked me if I knew
      what was there exactly or the amount that was there, and I didn’t
      know what was there and how much was there. I just said there
      would be a lot.
              Q. Did you know how much would be there? A. No. I just
      knew there would be a lot.

      Boege testified, however, that nothing found in Peniska’s car was hers.

When asked why she changed her story and had told her attorney she had lied to

the police, she stated it was because she did not think she should “take the fall

for something that wasn’t mine.” She said she was testifying, “[b]ecause I ruined

my life for nothing, for a false hope and false love.” Boege stated she had not

seen the drugs that were in evidence, and she did not know where they would

have been found. She did, however, recognize the container police found on the

console between the bucket seats of the Mustang—“It’s what he used to keep his

dope in. It was waterproof and it was easy to conceal. It’s for ear buds. They

are like ear mufflers for Darling [the company Peniska worked for]. They hand

them out there.”
                                        9


      While Peniska acknowledges that controlled substances were found in a

vehicle of which “he had an apparent ownership interest” and that he was the last

person in the vehicle before the drugs were found, he argues there is no

evidence he knew of their presence or that he had the authority or right to control

them—and both factors are necessary to establish constructive possession. See

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

      As stated in State v. Kern, 831 N.W.2d 149, 161 (Iowa 2013),

“constructive possession involves inferences.” Peniska seeks to avoid the valid

inference that arises from the exclusive possession of “the premises,” i.e., the

car, where drugs are found. See Reeves, 209 N.W.2d at 23 (“If the premises on

which such substances are found are in the exclusive possession of the accused,

knowledge of their presence on such premises coupled with his ability to

maintain control over such substances may be inferred.        Although no further

proof of knowledge by the State is required in cases of exclusive possession by

the accused the inference of knowledge is rebuttable and not conclusive.”). In

State v. Dewitt, 811 N.W.2d 460, 474-75 (Iowa 2012), our supreme court stated:

      Vehicles, however, alter the exclusive possession rule because of
      its modern role as a shared accommodation. We will not recognize
      an inference creating a rebuttable presumption of possession
      involving vehicles when it has been established that multiple
      individuals had equal access to the vehicle. When there is joint
      control, we require additional evidence to connect the defendant to
      the controlled substance sufficient to support a conviction for
      possession.

(Citations omitted.) We are to consider (1) incriminating statements made by a

person; (2) incriminating actions of the person upon the police officer’s discovery

of a controlled substance among or near the person’s personal belongings;
                                        10


(3) whether the person’s fingerprints are on the packages containing the

controlled substance; and (4) any other circumstances linking the person to the

controlled substance. Kern, 831 N.W.2d at 161.

              When the “premises” involve a motor vehicle, a court may
       consider these additional factors: (1) was the contraband in plain
       view, (2) was it with the accused’s personal effects, (3) was it found
       on the same side of the car seat as the accused or immediately
       next to him, (4) was the accused the owner of the vehicle, and (5)
       was there suspicious activity by the accused.

Carter, 696 N.W.2d at 39.

       Peniska argues the evidence showed Boege was alone in Peniska’s car

after it was parked in the station and just before he returned to the vehicle after

pumping gas.     Ms. Kierstead (formerly Kay) did testify that she saw “the

passenger from the white Jeep in the gentleman’s car” and she thought it “kind of

odd” that the passenger from the Jeep got “in the passenger side” of “another

random customer’s car.”      Boege, however, testified she did not get in the

Mustang because Peniska had yelled at her. She also testified the drugs in

Peniska’s car were Peniska’s and that she recognized the container found on the

console as being what Peniska “used to keep his dope in.”           Officer Powles

testified that Peniska had his left hand down in front of the passenger seat.

Baggies were found on the floor on that side of Peniska’s vehicle in plain view.

       It is the task of the jury to resolve questions of fact and assess the

credibility of witnesses.   State v. Mills, 458 N.W.2d 395, 397 (Iowa Ct. App.

1990). “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.” Nitcher, 720 N.W.2d at 556. Based on the evidence presented, the
                                         11


jury could reasonably infer that Peniska knew of and had the right to control the

drugs found on and in the console next to the driver’s seat of his vehicle. We

conclude substantial evidence supports the convictions.

       Peniska argues that even if the evidence is sufficient to sustain the

convictions, he should have been granted a new trial because the weight of the

credible evidence heavily preponderated against the jury verdicts.

       The weight-of-the-evidence standard differs from the sufficiency-of-the-

evidence standard in that the district court does not view the evidence from a

standpoint most favorable to the government. State v. Taylor, 689 N.W.2d 116,

134 (Iowa 2004).     Rather, the court weighs the evidence and considers the

credibility of the witnesses. Id. While it has the discretion to grant a new trial

where a verdict rendered by the jury is contrary to law or evidence, the court

should do so only “carefully or sparingly.” Id. 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. State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003). Here, the district

court did not abuse its discretion in denying Peniska’s motion for new trial.

III. Jury Instruction.

       Finally, Peniska contends the jury was not adequately instructed on the

law of constructive possession. We review such claims for errors of law. State v.

Becker, 818 N.W.2d 135, 140 (Iowa 2012).          A trial court’s refusal to give a

requested jury instruction is reviewed for an abuse of discretion. Id. “‘An abuse

of discretion occurs when the court’s decision is based on a ground or reason
                                          12


that is clearly untenable or when the court’s discretion is exercised to a clearly

unreasonable degree.’” Id. (citation omitted).

       “‘It is well settled that a trial court need not instruct in a particular way so

long as the subject of the applicable law is correctly covered when all the

instructions are read together.’” State v. Canal, 773 N.W.2d 528, 532 (Iowa

2009) (quoting State v. Uthe, 542 N.W.2d 810, 815 (Iowa 1996)).

       The district court gave the uniform jury instruction on possession, which

provided:

              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
       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” has been used in these
       instructions, it includes actual as well as constructive possession
       and sole as well as joint possession.

See Iowa State Bar Ass’n Criminal Jury Instruction No. 200.47.

       While Peniska asked for a more particularized jury instruction,2 we

conclude the substance of the additional statements was adequately covered in


2
  The instruction requested was identical to the one given but included the italicized
language below:
               The law recognizes several kinds of possession. A person may
       have actual possession or constructive possession. A person may have
       sole or joint possession.
                                          13


the instruction given. We find no abuse of discretion in refusing to give the

requested instruction. We therefore affirm.

      AFFIRMED.




               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 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. Proof of opportunity of
      access to a place where contraband is found will not, without more,
      support a finding of unlawful possession. State v. Reeves, 209 N.W.2d
      18 (Iowa 1973). The authority or right to maintain control includes
      something more than the ‘raw physical ability’ to exercise control over the
      controlled substance. The defendant must have some proprietary interest
      or an immediate right to control or reduce the controlled substance to the
      defendant’s possession. State v. Bash, 670 N.W.2d 135 (Iowa 2003).
               Knowledge alone is not enough to establish constructive
      possession; the evidence must also support an inference that he had the
      ability to maintain control of the controlled substance. State v. Reeves,
      209 N.W.2d 18, 22 (Iowa 1973).
               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” has been used in these
      instructions, it includes actual as well as constructive possession and sole
      as well as joint possession.
