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State v. Gahagan

Court of Appeals of Iowa

June 7, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
MITCHELL SCOTT GAHAGAN, Defendant-Appellant.

         Appeal from the Iowa District Court for Scott County, Mark R. Lawson (jury trial) and Nancy S. Tabor (contempt and sentencing), Judges.

         The defendant appeals from his conviction and sentence for failure to affix a drug tax stamp.

          Leah D. Patton of Puryear Law P.C., Davenport, for appellant.

          Thomas 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.

          POTTERFIELD, Judge.

         Mitchell 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 hearing.

         I. Background Facts and Proceedings.

         On 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 handgun.

         On January 3, 2014, Gahagan was charged with failure to affix a drug tax stamp, in violation of Iowa Code section 453B.12 (2013).[1]

         A jury 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 any packaging?
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 consists of?

A. It has photographs of what the actual drug tax stamps should look like ...


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