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.
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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,
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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).
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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
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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.”
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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;
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(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
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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
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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.