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State v. Gordon

Court of Appeals of Iowa

November 8, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
OWEN ROBERT GORDON, Defendant-Appellant.

         Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.

         Defendant appeals his convictions for eluding, operating while under the influence of a drug, and possession of a controlled substance.

          John P. Beauvais Jr., Sioux City, for appellant.

          Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant Attorney General, for appellee.

          Heard by Vogel, P.J., and Tabor and Bower, JJ.

          BOWER, Judge.

         Owen Gordon appeals his convictions for eluding, operating while under the influence of a drug, and possession of a controlled substance. We find a defendant may be convicted of possession of a controlled substance, even though the State has not located the controlled substance, if there is sufficient evidence the defendant actually possessed the controlled substance at one time. Also, there is substantial evidence in the record to support Gordon's convictions for eluding, operating while under the influence, and possession of a controlled substance (marijuana). We affirm the district court.

         I. Background Facts & Proceedings

         On July 7, 2015, at 1:23 a.m., Officer Brandon Hallopeter was in his squad car in Sioux City when he observed a GMC Yukon drive by. As a matter of routine, Officer Hallopeter checked the license plate of the vehicle and discovered it had expired. He began following the Yukon, and it "increas[ed] its speed, acting like it was trying to elude me." Officer Hallopeter saw the vehicle take a wide turn and run through a stop sign. He turned on his flashing lights and siren, but the vehicle did not stop. Officer Hallopeter informed dispatch he believed the driver of the vehicle might be impaired. The vehicle went through several more stop signs, was going seventy miles per hour in a thirty-five mile per hour zone, and crossed the center line several times. After a chase lasting about nine minutes, the vehicle stopped.

         The driver of the vehicle was Gordon, and there was a female passenger in the car.[1] Officer Hallopeter noticed the odor of marijuana coming from the vehicle and Gordon. Officer Michael Sitzman arrived at the scene and stated he detected "the odor of raw marijuana coming from inside the vehicle." Officer Sitzman was part of a canine unit. His dog alerted to the odor of a controlled substance on the passenger's side floorboard and a bag in the backseat. Officers found rolling papers in the vehicle but did not find any controlled substances.

         Gordon stated he had taken about ten hits from a marijuana joint and then threw the marijuana out the window while he was being pursued. Gordon was taken to the police station, where Officer Hallopeter engaged in a twelve-step drug recognition process.[2] Officer Hallopeter believed Gordon was under the influence of marijuana due to lack of eye convergence, rebound dilation of the pupils, marked reddening of the conjunctiva, eyelid tremors, a high pulse, and high blood pressure. The jailer, Miranda Kluver, stated Gordon "had red bloodshot eyes. They were a little glossy."

         Gordon was charged with eluding, in violation of Iowa Code section 321.279(3) (2015); operating while under the influence of a drug, in violation of section 321J.2; and possession of a controlled substance (marijuana), in violation of section 124.401(5). Gordon filed a motion for adjudication of law points, claiming he could not be found guilty of possession of a controlled substance when no controlled substance had been located. The court did not grant the motion, stating "factual disputes exist which may need to be developed before the court considers the merits of the motion."

         Gordon waived his right to a jury trial and the case was tried to the court. The court found Gordon was guilty of eluding, operating while under the influence, and possession of marijuana. In total, Gordon was sentenced to a term of imprisonment not to exceed five years. He now appeals his convictions.

         II. Possession of a ...


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