from the Iowa District Court for Pocahontas County, Kurt J.
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
J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
Considered by Mullins, P.J., and Bower and McDonald, JJ.
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.
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
State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014).
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.
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.
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.
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 ...