IN THE COURT OF APPEALS OF IOWA
No. 13-1997
Filed March 11, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TAQUALA MONIQUE HOWSE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Jeffrey Harris,
District Associate Judge.
Taquala Howse appeals her conviction of carrying weapons, an
aggravated misdemeanor, in violation of Iowa Code section 724.4 (2011).
REVERSED.
John Audlehelm of Audlehelm Law Office, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Emily Zerkel, Assistant
County Attorney, for appellee.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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DANILSON, C.J.
Taquala Monique Howse appeals her conviction for carrying weapons, an
aggravated misdemeanor in violation of Iowa Code section 724.4 (2011). She
contends the stun gun found in her purse does not qualify as a dangerous
weapon and thus her conviction cannot stand. By statutory definition, “any
portable device or weapon directing an electric current, impulse, wave, or beam
that produces a high-voltage pulse designed to immobilize a person” is a
“dangerous weapon.” Iowa Code § 702.7. Because the record does not contain
evidence that the stun gun found in the defendant’s purse “produces a high-
voltage pulse designed to immobilize a person,” we reverse her conviction.
I. Background Facts and Proceedings.
On June 23, 2013, police responded to a report of a theft at a Waterloo
store. Howse was identified as a suspect and arrested. She was handcuffed,
escorted by police to a squad car, and searched. Officer Kyle Jurgensen found a
“small hand-held stun gun” in Howse’s purse, which Howse stated she had
purchased. She stated she “carried it to clubs and whatnot.” When asked if she
had a permit to carry the stun gun she said “no.” Howse was charged with
carrying weapons.
At the bench trial, Officer Jurgensen testified a stun gun emits an electrical
current and is able to incapacitate someone. He testified the stun gun found in
Howse’s purse “appeared to be all there—all the components of a stun gun.” He
had not tested the stun gun however. When asked why, he stated: “A stun gun,
to me, is dangerous. I didn’t know the condition or maintenance the defendant
has done with her stun gun, so I didn’t want to test it in my hand.”
3
The court asked, “Depending on the physiology of the victim and the
number of times a stun gun might be administered, would a stun gun be capable
of administering serious bodily injury and/or death?” Officer Jurgensen testified a
stun gun is capable of administering serious bodily injury and, perhaps death
under certain circumstances: “I mean, there would have to be some prior
conditions to that. . . . You know, depends if there’s drugs in the system, heart
conditions. I mean, you know, environment, everything plays a factor.” He
stated that such devices were designed to incapacitate a person, though “there
has been documented deaths using Tasers and stun guns, but like I said, there
have been other preconditions. I mean, stun guns and Tasers were not put on
the market to kill people.”
Officer Greg Erie, a field training officer, defensive tactics instructor, and
Taser instructor with the Waterloo Police Department, testified he had previously
examined the stun gun and “if it functioned properly” it would emit an electrical
current. He testified that if one was touched with a stun gun, “it is just like being
electrocuted.” He also testified that officers are taught to avoid the head and
neck area when employing their stun guns because of foreseeable injuries. He
distinguished a taser from a stun gun stating a taser will immobilize a person. He
described the function of a stun gun as a “compliance tool”—once an individual
feels the shock they jump back. Officer Erie also testified he did not “have any
background with this one,” did not know how many volts this device emitted, and
“couldn’t get [this device] to work.”
In closing, the State argued it had proved the three elements of the
offense, that is,
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First, the state has established proof beyond a reasonable doubt
that the defendant violated all three elements of the offense of
Carrying Weapons and that on or about June 23rd, 2013, the
defendant was armed with a stun gun. The stun gun was
concealed on or about the defendant’s person, and the stun gun
was a dangerous weapon.
....
. . . [R]egarding the third element and the fighting issue in
this case, the state offered proof that a stun gun is a dangerous
weapon. The defendant herself admitted she carried the stun gun
for purposes of defending against attack. Officer Jurgensen
testified that he did not test the weapon, because it would be
dangerous to do so, as well as the specialist, Greg Erie, testified
that such a device is used for training police officers, and that it has
the possibility of inflicting pain and injury on individuals.
The prosecutor quoted section 702.7, which defines a dangerous weapon
as including “any portable device or weapon directing an electrical current,
impulse, wave, or beam that produces a high-voltage pulse designed to
immobilize a person.” The prosecutor argued, “By so construing the language of
the statute, quote, ‘the legislature sought to establish a broad, flexible definition
of “dangerous weapons,”’ as recognized by Justice Cady in State v. Pearson,
547 N.W.2d 236, and that’s Iowa 1996.” She added the anticipated defense
argument that the device was inoperable was “not determinative,” citing State v.
Hemminger. See 308 N.W.2d 17, 20 (Iowa 1981) (“The definition of ‘dangerous
weapon’ goes to the character of the instrument utilized. Thus, working condition
should never be an issue where the instrument employed has the character of a
dangerous weapon.” (internal citation omitted)).
Defense counsel countered with a “twofold” argument: first, “that in order
to be convicted of Carrying Weapons or carrying a concealed stun gun, the
State’s got to show, first of all, that this is a stun gun which produces a high-
voltage pulse designed to immobilize a person.” And secondly, “the State [must]
5
prove that the device is capable of inflicting death when used in the manner for
which it was designed.”
On December 5, 2013, the district court issued its ruling, which provides in
part:
3. Under the terms of section 702.7 Code of Iowa,
“dangerous weapons” include “any portable device or weapon
directing an electric current, pulse, wave or beam that produces a
high-voltage pulse designed to immobilize a person.” The State of
Iowa has no affirmative burden to produce evidence as to how
much high voltage a particular device will emit or produce.
4. The Iowa legislature has acknowledged the dangerous
nature of taser and/or stun gun . . . .
5. The court must look to the appellate decisions which
address the “dangerous weapon” language of section 702.7 Code
of Iowa as it involves loaded and unloaded revolvers for guidance
as well as the sole appellate decision involving an employed stun
gun, State v. Geier, 484 N.W.2d 167 (Iowa 1992), cited by the
parties as authority.
6. The court accords significant weight to the “capability
requirement” outlined in the Iowa Supreme Court decision issued in
State v. Nichols, 276 N.W.2d 416 (Iowa 1979).
7. Serious injury and/or death can be inflicted by a stun gun
administered to a person who is vulnerable because of a weakened
heart; heart condition; or drugs in the victim’s system. As such,
serious injury and/or death can come based upon the following:
a. administration of the stun to the head or neck of a
potentially vulnerable victim;
b. prolonged administration of the stun gun to the
head or neck of a victim;
c. a victim’s prior condition(s) that would make
him/her vulnerable to the stun.
8. Based upon the credible matters presented, the court
finds that the State of Iowa has presented substantial evidence to
establish the essential elements of the charged offense beyond a
reasonable doubt.
Howse appeals.
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II. Scope and Standard of Review.
“To the extent our review . . . requires us to interpret the meaning and
scope of a particular statute, our review is for correction of errors at law.” State
v. Anspach, 627 N.W.2d 227, 231 (Iowa 2001); accord State v. Romer, 832
N.W.2d 169, 174 (Iowa 2013).
“When reviewing such issues we are not bound by the trial court’s
determinations of law.” Where the defendant also challenges the
sufficiency of the evidence to support his conviction under the
statute, “we review the evidence to determine whether a rational
trier of fact could have found the defendant guilty of the offense
charged” beyond a reasonable doubt. Thus, our review of all the
evidence in the record is made in a light most favorable to the
State.
Anspach, 627 N.W.2d at 231 (citations omitted); see also State v. Jorgensen,
758 N.W.2d 830, 834 (Iowa 2008).
III. Discussion.
Iowa Code section 724.4(1) provides, “Except as otherwise provided in
this section, a person who goes armed with a dangerous weapon concealed on
or about the person . . . commits an aggravated misdemeanor.”
On appeal, Howse contends that as a matter of law or fact the stun gun
found in her purse does not qualify as a “dangerous weapon” under section
702.7, and thus her conviction is not supported by substantial evidence.1
1
We reject the State’s preservation-of-error argument, which promotes form over
substance. It is true, “[w]e do not review issues that have not been raised or decided by
the district court.” State v. Dewitt, 811 N.W.2d 460, 467 (Iowa 2012). The State’s
complaint that rules of preservation must be upheld or the State is “unfairly hamstr[ung]”
and “blindside[d]” ring hollow here. Whether addressed as a matter of statutory
interpretation or sufficiency of the evidence, the question argued and decided by the trial
court is whether the stun gun found in Howse’s purse comes within the statutory
definition of a “dangerous weapon.”
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Iowa Code section 702.7 defines dangerous weapons. That provision
reads:
A “dangerous weapon” is any instrument or device designed
primarily for use in inflicting death or injury upon a human being or
animal, and which is capable of inflicting death upon a human being
when used in the manner for which it was designed, except a bow
and arrow when possessed and used for hunting or any other
lawful purpose. Additionally, any instrument or device of any sort
whatsoever which is actually used in such a manner as to indicate
that the defendant intends to inflict death or serious injury upon the
other, and which, when so used, is capable of inflicting death upon
a human being, is a dangerous weapon. Dangerous weapons
include but are not limited to any offensive weapon, pistol, revolver,
or other firearm, dagger, razor, stiletto, switchblade knife, knife
having a blade exceeding five inches in length, or any portable
device or weapon directing an electric current, impulse, wave, or
beam that produces a high-voltage pulse designed to immobilize a
person.
Section 702.7 thus provides three paths by which a weapon may be
deemed dangerous: (1) a device which is “designed primarily for use in inflicting
death or injury upon a human being or animal, and which is capable of inflicting
death upon a human being when used in the manner for which it was designed”
(but excepting a bow and arrow under certain circumstances); (2) a device
“which is actually used in such a manner as to indicate that the defendant intends
to inflict death or serious injury upon the other, and which, when so used, is
capable of inflicting death upon a human being, is a dangerous weapon”; and
(3) devices listed that are statutorily determined to be dangerous weapons per
se, one of which is “any portable device or weapon directing an electric current,
impulse, wave, or beam that produces a high-voltage pulse designed to
immobilize a person.” Only the first and third are relevant to the case at hand;
the second requires a device that is actually used, which has no bearing here.
8
In Geier, 484 N.W.2d at 171-72, the supreme court considered whether a
stun gun fell within the definition of a “dangerous weapon” pursuant to the first
path noted above (designed primarily for use in inflicting death or injury and
which is capable of inflicting death) and concluded “there was sufficient evidence
adduced at trial to convince a rational trier of fact that a stun gun is a ‘dangerous
weapon’ under the aforementioned statutory definition.” The court noted:
Deputy Muir testified that the stun gun uses a nine volt battery to
create an arc of electricity that ranges from 30,000 volts up to
65,000 volts thereby imparting a shock to the recipient. Clearly, a
shock resulting from an electric charge that may range as high as
65,000 volts is a “device designed primarily for use in inflicting . . .
injury,” which is described by the Model Penal Code as “physical
pain . . . or an impairment of physical condition.” . . . Deputy Muir
also indicated that the stun gun is capable of causing death if used
in the head or neck region. Deputy Muir’s testimony exceeds the
threshold necessary to sustain the court’s finding that a stun gun is
a “dangerous weapon” as that term is defined in section 702.7.
Geier, 484 N.W.2d at 171.
The trial court here found that generally a stun gun is capable of causing
death. But unlike the evidence presented in Geier, there was no evidence as to
the power of the stun gun here. Officer Jurgensen did not test the stun gun, and
Officer Erie specifically stated he had no background with this particular small
stun gun and he “couldn’t get it to work.” Without some evidence of the
capabilities of this particular stun gun, there is not substantial evidence to support
a finding that it was “designed primarily for use in inflicting . . . injury” as was the
case in Geier. Consequently, unless the evidence supports a finding that the
stun gun was a dangerous weapon per se under the third path of section 702.7,
Howse’s conviction cannot stand.
9
After Geier was decided, the legislature amended the list of per se
dangerous weapons to included “any portable device or weapon directing an
electric current, pulse, wave or beam that produces a high-voltage pulse
designed to immobilize a person.” While we might agree in principle with the trial
court that the State is not required to “produce evidence as to how much high
voltage a particular device will emit or produce,” we do conclude that to qualify
under the per se dangerous weapons listing, there must be some evidence the
device “produces a high-voltage pulse designed to immobilize a person.” Here,
the State’s witnesses’ testimony related to stun guns in general not this specific
device. Nothing in this record establishes, even in general terms, the voltage of
the device at issue—high, low, or in-between, and if it had sufficient voltage to
immobilize a person.
We conclude there is not substantial evidence in this record to sustain the
conviction. We therefore reverse.
REVERSED.