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State v. Bushnell

Court of Appeals of Iowa

March 12, 2014

STATE OF IOWA, Plaintiff-Appellee,
v.
LEO WILSON BUSHNELL, Defendant-Appellant

Editorial Note:

This decision is published in table format in the North Western Reporter.

Appeal from the Iowa District Court for Linn County, Robert E. Sosalla, Judge. Leo Bushnell appeals from convictions of possession of a controlled substance, possession of drug paraphernalia, and interference with official acts.

Lars G. Anderson of Holland and Anderson, L.L.P., Iowa City, for appellant.

Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant Attorney General, Jerry Vander Sanden, County Attorney, and Lisa Epp, Assistant County Attorney, for appellee.

Considered by Potterfield, P.J., and Doyle and Bower, JJ.

OPINION

POTTERFIELD, P.J.

Leo Bushnell appeals from convictions of possession of a controlled substance, possession of drug paraphernalia, and interference with official acts.[1] He contends there was insufficient evidence of possession and there was no evidence of active resistance to support the convictions. Bushnell also argues trial counsel was ineffective in failing to object to testimony that he was under the influence of controlled substances, had mental health issues, and had a prior criminal conviction. There was substantial evidence from which the jury could find constructive possession. Bushnell did more than " ignore[] law enforcement" from which the jury could find interference. We preserve the ineffectiveness claims for possible postconviction relief proceedings.

I. Background Facts and Proceedings.

At about 1 p.m. on March 8, 2012, uniformed probation officers responded to assist Cedar Rapids police with a domestic disturbance. Monica Wood, Leo Bushnell's live-in girlfriend, was in the hall outside of the apartment when officers arrived. Wood reported she had resided at the apartment with Bushnell for over one month. She reported Bushnell had been drinking and using synthetic marijuana (known as " K2" ), they got in a fight over a cell phone, and he was in the apartment having locked her out.

The law enforcement officers pounded loudly at the apartment door, identified themselves as police, and requested that Bushnell open the door, but Bushnell did not answer. Their knocking and announcements were loud enough that residents of other apartments came out to see what was happening. Wood, who was waiting on the first floor of the building, was able to hear the officers pounding on the third-floor apartment door. Bushnell called Wood to say " he will do anything I want him to do, just make the police go away."

Knowing that Bushnell had been in a domestic incident, may have been using drugs, and had past mental health issues, the officers decided to enter the apartment to check on Bushnell. They obtained a spare key from the apartment manager, but the door was chained. They broke the chain, again announcing their presence and identifying themselves. Officer Benjamin Keen checked a front closet while Officer Steven Warner and a third officer proceeded further into the apartment. Officer Warner and the other police officer yelled Bushnell's name but received no response. They came upon a locked door, knocked, and announced who they were. Receiving no response, the officers forced the door open.

The officers found Bushnell lying on a bed with a sheet pulled over his body and face. Bushnell's body was rigid. When officers removed the sheet they found he was " wide awake." After a couple commands, Bushnell showed his hands.

Officers searched the apartment. In the living room they found a small safe. Bushnell did not respond to questioning by officers other than to state that the safe was not his but Wood's. Wood explained the safe and its contents belonged to Bushnell. Wood did not have a key to the safe but said she knew where Bushnell hid the key. She assisted officers in opening the safe. Inside the safe were canisters containing synthetic marijuana and a variety of drug pipes. Lab testing confirmed the presence of salvinorin A, a type of synthetic marijuana.[2] The safe contained no personal documents or items, had no name associated with it, had no receipt of its purchase, and ...


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