Appeal from the Iowa District Court for Black Hawk County, Jeffrey L. Harris, District Associate Judge.
The opinion of the court was delivered by: Tabor, J.
John Ketchens Jr. appeals his conviction for public intoxication third offense. AFFIRMED.
Considered by Potterfield, P.J., and Danilson and Tabor, JJ.
John Ketchens Jr. appeals his conviction for public intoxication, third offense.*fn1 He asserts his trial counsel rendered ineffective assistance by failing to object to an alternative legal theory in the marshalling instruction. Because a reasonable juror could infer from circumstantial evidence that Ketchens drank alcohol in a public place, substantial evidence supported submitting that alternative to the jury. Therefore counsel had no duty to challenge the instruction.
I. Background Facts and Proceedings
On February 11, 2011, James Hawk was waiting for his bus at the Greyhound depot in Waterloo when he encountered another rider later identified as Ketchens. Seated facing one another, Hawk and Ketchens had a brief conversation. After Hawk fell silent, Ketchens yelled out, "Hey, I'm talking to you." At that point, Hawk noticed Ketchens slurring his words.
When another woman entered the depot, Ketchens also said to her, "Hey, I'm talking to you." She ignored him and eventually left. Hawk observed Ketchens "wasn't talking as properly as a normal person would . . . his eyes kind of looked like they were down." Hawk did not see Ketchens drink any liquor at the depot. Hawk advised a bus driver that he believed Ketchens was drunk, and the driver called police.
Officers Enes Mrzljak and Joshua Wessels were dispatched to the depot on the report of a man bothering other patrons. Arriving first on scene, Officer Mrzljak found Ketchens sitting in the waiting room with a half-empty 200 milliliter glass bottle of brandy sticking out of his left sweatshirt pocket. Officer Mrzljak noticed Ketchens smelled like an alcoholic beverage and had bloodshot, watery eyes. Ketchens admitted drinking from the bottle of brandy.
When Officer Wessels poured the remaining contents of the bottle into a drinking fountain, he confirmed the smell of brandy. The second officer also saw that Ketchens's eyes were bloodshot and watery, and smelled alcohol on his breath. Ketchens told Officer Wessels he was waiting for a ride, but not from a bus, that he was meeting a "lady friend" and "if he was not wanted at the bus lobby, he would rather go to the library."
Officer Wessels asked Ketchens to consent to a preliminary breath test to determine his level of intoxication. Ketchens agreed to the test but would not or could not blow hard enough to register his blood alcohol content. Based on their training and experience, both officers believed Ketchens was intoxicated. The officers also verified the Greyhound station did not have a liquor control license.
Officer Wessels arrested Ketchens and transported him to the Black Hawk County jail. When a deputy asked if he possessed any contraband, Ketchens admitted having a marijuana cigarette in his sock. Officers seized the cigarette, which tested positive for marijuana.
On March 25, 2011, the State filed a trial information charging Ketchens with one count of possession of a controlled substance, third offense, in violation of Iowa Code section 124.401(5), and one count of public intoxication, third offense, in violation of sections 123.46 and 123.91. Ketchens pleaded not guilty to both charges, and a trial began on November 15, 2011.*fn2 The following day, a jury found him guilty on both counts.
After denying Ketchens's motion for a new trial, the court sentenced him to consecutive terms of imprisonment not to exceed two years. Ketchens now appeals the public intoxication conviction, ...