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State v. Kuzmicki

Court of Appeals of Iowa

May 3, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
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).

          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.

          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).

         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 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 ...


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