IN THE COURT OF APPEALS OF IOWA
No. 16-0122
Filed May 3, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DALE KUZMICKI,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pocahontas County, Kurt J.
Stoebe, Judge.
Defendant appeals his conviction for gathering where controlled
substances are used, in violation of Iowa Code section 124.407 (2015), and
possession of methamphetamine (third offense), in violation of section
124.401(5). AFFIRMED.
Jennifer Bonzer of Johnson and Bonzer, Marshalltown, for appellant.
Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.
Dale Kuzmicki was arrested and charged with (I) gathering where
controlled substances are used, in violation of Iowa Code section 124.407
(2015), (II) possession of methamphetamine (third offense), in violation of section
124.401(5), and (III) possession of marijuana (third offense), in violation of
section 124.401(5). Kuzmicki waived his right to trial by jury, and the case
proceeded to bench trial. The district court found Kuzmicki guilty on counts I and
II and not guilty on count III. On appeal, Kuzmicki challenges the sufficiency of
the evidence supporting his convictions. He also contends his trial counsel
provided constitutionally deficient representation in failing to ensure Kuzmicki’s
waiver of his right to trial by jury was knowing and voluntary.
We first address Kuzmicki’s challenge to the sufficiency of the evidence.
The claim is properly before us; there is no need to preserve error when the
matter is tried to the court. See State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997).
The standard of review is well established:
Sufficiency of evidence claims are reviewed for correction of errors
at law. In reviewing challenges to the sufficiency of evidence
supporting a guilty verdict, courts consider all of the record
evidence viewed in the light most favorable to the State, including
all reasonable inferences that may be fairly drawn from the
evidence. We will uphold a verdict if substantial record evidence
supports it. We will consider all the evidence presented, not just
the inculpatory evidence. Evidence is considered substantial if,
when viewed in the light most favorable to the State, it can
convince a rational [trier of fact] that the defendant is guilty beyond
a reasonable doubt. Inherent in our standard of review of . . .
verdicts in criminal cases is the recognition that the [trier of fact] is
free to reject certain evidence, and credit other evidence.
State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014).
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The record reflects Pocahontas Police Officer Travis Lampe was
dispatched to the residence of Dale and Tracy Kuzmicki to respond to a dispute
about a dog. There were several people outside the residence when Lampe
arrived, including Kari Sweeney, her daughter, and James Keck, all of whom
were seated in a van parked at the residence. Lampe determined Sweeney was
the owner of the van, and he checked her license. The check revealed Sweeney
had an outstanding warrant. Lampe told Sweeney he was going to take her into
custody. Lampe agreed Keck could take the child. Lampe also agreed Keck
could go inside the home to use the restroom before leaving with the child.
By this time, Kuzmicki and his wife Tracy had exited the home to inquire
why Lampe was there. Lampe explained he was responding to a dispute
regarding a dog. The dispute involved Mike and Elizabeth Nelson. Mike had
contacted the police for assistance in the return of his dog from Elizabeth.
Elizabeth and the dog were both at the Kuzmicki residence when Lampe arrived.
Kuzmicki offered to go inside the house and retrieve the dog. When Kuzmicki
went into the house, Keck asked Kuzmicki to help him escape through a back
window in the house. Kuzmicki refused, stating he did not want the police to
enter the house because he had “drugs and paraphernalia in the house.” Keck
then went and hid in an upstairs closet.
While Kuzmicki and Keck were in the house, Lampe and Tracy remained
outside the house. Lampe determined from Tracy that either Keck had given him
false identity information or Lampe had misheard the information. Regardless,
after learning Keck’s real name and conducting a check, Lampe determined
there was an active arrest warrant for Keck. Lampe radioed for assistance. He
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asked Tracy to go inside the residence and tell Keck to come out. Tracy went
inside. When she exited the residence, she told Lampe that Keck had left the
residence. Lampe suspected this was false information because he had been
observing the doors of the residence and had not observed Keck leave. Lampe
told Tracy he was going to go inside and get Keck after the other officers arrived
at the scene. Shortly thereafter, Keck exited the residence. Lampe placed Keck
under arrest and transported him to the Pocahontas County Jail.
Lampe interviewed Keck at the jail. Keck stated he had made
arrangements to purchase drugs from Kuzmicki and was at the residence to buy
methamphetamine. Keck told Lampe there were drugs and paraphernalia
throughout the residence.
Based on Keck’s information, Lampe successfully applied for a search
warrant of the residence. He and other officers executed the search warrant at
the home at approximately 10:30 p.m. the same day. There were five unrelated
adults at the residence at the time the warrant was executed. The officers
discovered drugs and drug paraphernalia throughout the house. For example,
they discovered in the kitchen: a light bulb modified for use as a pipe to smoke
methamphetamine; syringes inside a microwave; a digital scale; a soda bottle
fashioned into a bong that contained a blue liquid that tested positive for
methamphetamine; and a bottle cap with methamphetamine residue. In the
defendant’s bedroom, the officers discovered the following: a glass
methamphetamine pipe; plastic bags containing methamphetamine residue;
equipment and materials used in the manufacture of methamphetamine; a recipe
card detailing the process of manufacturing methamphetamine; a razor; tinfoil;
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plastic bags; and a metal pipe containing marijuana. There was another
bedroom in the home where officers discovered the following: spoons and tubes
with residue on them; and a camera bag containing methamphetamine, syringes,
and tubes. The officers arrested Kuzmicki and the others at the scene.
With respect to count I, the code provides, “It is unlawful for any person to
sponsor, promote, or aid, or assist in the sponsoring or promoting of a meeting,
gathering, or assemblage with the knowledge or intent that a controlled
substance be there distributed, used or possessed, in violation of [chapter 124].”
Iowa Code § 124.407. Contrary to Kuzmicki’s contention, the State is not
required to prove recent use. See State v. Dukes, No. 09-0062, 2009 WL
3379088, at *2 (Iowa Ct. App. Oct. 21, 2009) (explaining the state need only
prove “knowledge or intent that a controlled substance be there distributed, used,
or possessed”).
We conclude there was substantial evidence supporting Kuzmicki’s
conviction for gathering where controlled substances are used. There were
many unrelated adults at the residence when Lampe first arrived at the residence
and when the officers returned at night to execute the warrant. There were tents
set up in the yard. Keck drove to the Kuzmickis’ home to purchase
methamphetamine. He or his girlfriend called beforehand to confirm Kuzmicki
had possession of and was in fact selling methamphetamine. Kuzmicki admitted
to Keck he had drugs and paraphernalia in the home, which was confirmed when
the officers executed the warrant. There was a substantial amount of drugs, drug
residue, and drug paraphernalia throughout the home. When the evidence is
viewed in the light most favorable to the verdict, each element was supported by
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substantial evidence. See, e.g., State v. Carter, 582 N.W.2d 164, 167 (Iowa
1998); State v. Cartee, 577 N.W.2d 649, 653 (Iowa 1998).
With respect to count II, “[u]nlawful possession of a controlled substance
requires proof that the defendant: (1) exercised dominion and control over the
contraband, (2) had knowledge of its presence, and (3) had knowledge that the
material was a controlled substance.” State v. Bash, 670 N.W.2d 135, 137 (Iowa
2003). “Proof of opportunity of access to the place where contraband is found
will not, without more, support a finding of unlawful possession.” Id. The State
may show either “actual possession” or “constructive possession.” See Thomas,
847 N.W.2d at 442. “Constructive possession exists when the evidence shows
the defendant ‘has knowledge of the presence of the controlled substance and
has the authority or right to maintain control of it.’” State v. Reed, 875 N.W.2d
693, 705 (Iowa 2016) (citation omitted). Constructive possession may be
inferred when drugs are found on property in the defendant’s exclusive
possession. Id. When a person does not have exclusive possession of the
residence, additional proof is necessary. Id. Factors to consider in determining
whether the defendant possessed contraband discovered in a jointly occupied
residence include: incriminating statements made by a person; incriminating
actions of the person upon the police’s discovery of a controlled substance
among or near the person’s personal belongings; the person’s fingerprints on the
packages containing the controlled substances; and any other circumstances
linking the person to the controlled substance. Id. at 706.
There was substantial evidence Kuzmicki unlawfully possessed
methamphetamine. Kuzmicki and his wife rented the home. One could
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reasonably infer Kuzmicki had knowledge of the methamphetamine present in
the home because it was easily found or easily observable. Keck testified he
went to the home to purchase methamphetamine from Kuzmicki. Kuzmicki
confirmed, in the phone call, that he had possession of methamphetamine and
was selling it. Kuzmicki also acknowledged his possession of the drugs when
Keck asked for assistance in escaping through the back window. Kuzmicki’s wife
told the officers executing the warrant that the methamphetamine belonged to
Kuzmicki.
We next address Kuzmicki’s claim his counsel was ineffective. Ineffective-
assistance-of-counsel claims are an exception to the error preservation
requirement. State v. Stallings, 658 N.W.2d 106, 108 (Iowa 2003), overruled on
other grounds by State v. Feregrino, 756 N.W.2d 700, 707 (Iowa 2008).
Although such claims are generally preserved for postconviction-relief actions,
we will address them where the record is adequate to permit a ruling. State v.
Wills, 696 N.W.2d 20, 22 (Iowa 2005).
We review claims of ineffective assistance of counsel de novo. See State
v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003). To establish a claim, a defendant
must show counsel failed to perform an essential duty and prejudice resulted.
See State v. Keller, 760 N.W.2d 451, 452 (Iowa 2009). With respect to the first
element, “counsel’s performance is measured against the standard of a
reasonably competent practitioner, with the presumption that the attorney
performed his duties in a competent manner.” Id. On the second element, the
defendant must show “but for counsel’s error, there is a reasonable probability
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that the results of the trial would have been different.” Id. Failure to prove either
element defeats the entire claim. See Liddell, 672 N.W.2d at 809.
A jury trial is required unless a “defendant voluntarily and intelligently
waives a jury trial in writing and on the record.” Iowa R. Crim. P. 2.17(1). To
ensure the waiver is knowing, voluntary, and intelligent, the court must personally
address the defendant. See Liddell, 672 N.W.2d at 813. “[A] court should
ascertain whether the defendant understands the difference between jury and
non-jury trials, through an in-court colloquy.” Id. It has been suggested the court
inform the defendant (1) twelve members of the community compose a jury, (2)
the defendant may take part in jury selection, (3) jury verdicts must be
unanimous, (4) the court alone decides guilt or innocence if the defendant waives
a jury trial, and (5) neither the court nor the prosecution will reward the defendant
for waiving a jury trial. Id. at 813–14. The five subjects of inquiry are neither
“‘black-letter rules’ nor a ‘checklist’ by which all jury-trial waivers must be strictly
judged.” Id. at 814. “Substantial compliance is acceptable.” Id. The “ultimate
inquiry” is “whether the defendant’s waiver is knowing, voluntary, and intelligent.”
Id.
Kuzmicki argues the court made no efforts to ascertain whether he
believed he would be rewarded in some way for waiving a jury trial. Kuzmicki
contends he was prejudiced as a result of his lawyer’s failure to compel such an
inquiry because the record shows Kuzmicki thought it would be advantageous to
waive a jury trial (i.e., he would be rewarded for doing so). We conclude the
record is inadequate to resolve the claim, and we preserve the claim for
postconviction-relief proceedings. See Feregrino, 756 N.W.2d at 707–08
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(explaining a violation of required colloquy (jury trial waiver) does not necessarily
prove the defendant failed to actually understand the issue).
For the foregoing reasons, we affirm the defendant’s convictions.
AFFIRMED.