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State v. Brekke

Court of Appeals of Iowa

March 6, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
JOSEPH EDWARD BREKKE, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.

         Joseph Brekke appeals his convictions for operating while intoxicated and possession of controlled substances.

          John C. Heinicke of Kragnes & Associates, PC, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., and Tabor and Bower, JJ.

          BOWER, JUDGE.

         Joseph Brekke appeals his convictions for operating while intoxicated and possession of controlled substances. We find substantial evidence supports each conviction and affirm the district court.

         I. Background Facts & Proceedings

         Just after 2:00 a.m. on October 3, 2017, law enforcement found Brekke's vehicle stopped a few feet into an intersection of two major roads with the engine running and brake lights on. The officer performed a welfare check when the vehicle did not move through two green light cycles, and observed Brekke passed out in the driver's seat. The officer woke Brekke by knocking on the window and asked him to step out of the vehicle. Brekke appeared groggy, lethargic, and confused. The officer smelled alcohol on Brekke and Brekke exhibited signs of an intoxicated individual, including bloodshot and watery eyes, slurred speech, and unsteady balance. Brekke admitted to drinking a few beers earlier that night. Brekke told the officers he took "a lot" of medications including for a bad back and mental health. Brekke was unable to orient himself and soon claimed he had never been in the driver's seat of his car and had been left in the intersection by a friend when the car ran out of gas. Brekke's horizontal gaze nystagmus test indicated intoxication, but he could not complete other field sobriety tests due to a claimed back injury. He refused to take a preliminary breath test, and, after being read the implied consent advisory at the police station, refused to submit a breath sample.

         A search of the vehicle yielded three alprazolam pills and two hydrocodone pills in a cigarette pack cellophane wrapper in the center console. A large amount of cash was also found in the vehicle. A search of Brekke yielded a cigarette pack containing a credit or debit card with Brekke's name on it, a folded paper packet containing a white powdery substance, and a vial with residue of the same powdery substance. The officers suspected, and testing confirmed, the substance was cocaine. It appeared Brekke had not cleaned out the vehicle for some time, and he testified to having owned the vehicle for thirteen years. Brekke's current prescription medications were not found in the vehicle.

         Brekke was charged with one count of operating while intoxicated, in violation of Iowa Code section 321J.2 (2017), and three counts of possession of a controlled substance-for cocaine, hydrocodone, and alprazolam-in violation of section 124.401. A jury trial was held March 7 and 8, 2018. Brekke moved for directed verdict and judgment of acquittal at the close of the State's evidence, which the court denied.

         Brekke testified at trial. He testified that in the past, he had valid prescriptions for alprazolam and hydrocodone, which had expired in 2010 and 2013, respectively. He testified to having prescriptions for mental-health-related medications on October 3, but he had not taken them for several days and his physical signs of intoxication were signs of his withdrawal from the prescriptions.[1]Brekke attributed his behavior to various physical ailments, fatigue, suicide ideation, and emotional trauma from watching a friend shoot himself triggered by a recent mass shooting. He testified on October 3 he was on his way to the hospital due to an episode of psychosis. He had a prescription for eye drops but testified he had not been using them and the drops were not found on him. He claimed he picked up an open cigarette pack he found in a gas station bathroom and put it in his pocket without looking in it, not knowing it had cocaine in it and no cigarettes. He did not inform the officers of any these claims beyond the physical ailments, and much of the testimony conflicts with what he told officers that night.

         The motion for judgment of acquittal was renewed and again denied at the close of the defense's evidence. The jury returned a guilty verdict on all four counts. Brekke filed a motion in arrest of judgment and motion for new trial. The court denied the motions and on April 5 entered judgment and sentenced Brekke. Brekke appeals, claiming there was not sufficient evidence to support his conviction on any of the charges.

         II. ...


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