from the Iowa District Court for Scott County, Mark R. Lawson
(jury trial) and Nancy S. Tabor (contempt and sentencing),
defendant appeals from his conviction and sentence for
failure to affix a drug tax stamp.
D. Patton of Puryear Law P.C., Davenport, for appellant.
J. Miller, Attorney General, and Linda J. Hines, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
Tabor, J., takes no part.
Gahagan appeals from his conviction and sentence for failure
to affix a drug tax stamp, following a jury trial, and from
the court's finding of contempt. Gahagan raises multiple
claims of ineffective assistance; he maintains trial counsel
was ineffective for failing to (1) object when the State
recalled a witness, (2) move for judgment of acquittal when
the State rested, and (3) file a writ of certiorari to
challenge the court's finding of contempt. Additionally,
he maintains the district court abused its discretion when
sentencing him, claiming the court (1) considered an improper
sentencing factor, namely, pending charges; and (2) wrongly
refused to allow defense witnesses to make statements at the
Background Facts and Proceedings.
November 23, 2013, Davenport police responded to a 911 call
made by Gahagan's girlfriend alleging a domestic
disturbance at Gahagan's residence. Based on comments
made by the girlfriend to the officers after they arrived on
the scene, the officers obtained a search warrant to search
for drugs in Gahagan's home and vehicle. During the
search, officers located two plastic bags containing
marijuana underneath Gahagan's mattress. Another plastic
bag of marijuana and a marijuana cigar were found beside a
tote in Gahagan's bedroom. When searching Gahagan's
vehicle, officers located another plastic bag containing
marijuana, a scale with marijuana residue on it, and a
January 3, 2014, Gahagan was charged with failure to affix a
drug tax stamp, in violation of Iowa Code section 453B.12
trial commenced on September 28, 2015, in case FECR358471.
The State called Detective Janet Martin; she testified she
was the evidence collection officer at the scene on November
23, 2013, meaning she "collected] everything that was
located at the search warrant." During her testimony, a
number of photos were admitted depicting the marijuana (and
its packaging) that were located in Gahagan's home and
vehicle and ultimately seized. Martin testified the four
packages of marijuana had net weights of 26.61 grams, 34.63
grams, 26.50 grams, and 10.86 grams (for a total net weight
of 98.6 grams). Additionally, the State introduced into
evidence the actual "plastic grocery sack (white)",
"baggie, " and "plastic grocery sack
(grey)" that had contained the marijuana. After the
State finished its questions of Detective Martin, defense
counsel cross-examined her. The State then called two other
detectives before recalling Detective Martin in its case in
chief. When she was back on the stand, the following exchange
occurred between the prosecutor and the detective:
Q. Detective Martin, there was one topic that I forgot to
speak to you about. With respect to State's Exhibit
Number 3, the marijuana blunt that was taken off of that
purple tote in Mr. Gahagan's bedroom, Exhibits 4, 5 and
6, and which would be the two Exhibits of marijuana behind
the bed and the tote and then the Exhibit 19 being the
marijuana taken from the center console of his vehicle, did
you look to see if there was any drug tax stamp affixed to
A. Yes I did.
Q. Was there any drug tax stamp affixed to the packaging?
A. No, there was not.
Q. In the State of Iowa what would be the triggering point
that would require an individual to purchase a drug tax stamp
and affix it to marijuana?
A. If someone possessed over 42.5 grams of marijuana.
Q. If you look at the laboratory report, was Mr. Gahagan- the
quantity of marijuana that was taken in this investigation
well in excess of the 42.5 grams?
A. Yes it was.
PROSECUTOR: Your Honor, may the record reflect I'm
showing counsel a demonstrative exhibit.
THE COURT: It's just demonstrative.
(A discussion was held off the record at this time.)
PROSECUTOR: Your Honor, may I approach the witness?
THE COURT: You may.
Q. Detective Martin, I'm handing you very simply what
I'm designating as a demonstrative exhibit, do you
recognize that exhibit?
A. Yes I do.
Q. Describe very simply what that demonstrative exhibit
A. It has photographs of what the actual drug tax stamps
should look like ...