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State v. Breeding

Court of Appeals of Iowa

May 1, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
JULIE ANN BREEDING, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.

         Julie Ann Breeding appeals following her convictions for possession of methamphetamine with intent to deliver and failure to possess a drug tax stamp as a second or subsequent offender.

          Thomas A. Hurd of Glazebrook, Greenberg & Hurd, LLP, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Katie M. Krickbaum, Assistant Attorney General, for appellee.

          Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.

          VAITHESWARAN, JUDGE.

         A jury found Julie Ann Breeding guilty of possession of methamphetamine with intent to deliver and failure to possess a drug tax stamp as a second or subsequent offender. See Iowa Code §§ 124.401 (b)(7), 124.411, 453B.3, 453B.12 (2016). The district court subsequently imposed sentences.

         On appeal, Breeding argues (1) the evidence was insufficient to support the findings of guilt, (2) her trial attorney was ineffective in failing to object to portions of the State's closing argument on the basis of prosecutorial misconduct, and (3) the district court erred and abused its discretion in imposing sentence on the possession count.

         I. Sufficiency of the Evidence

         Breeding contends "there was insufficient evidence from which a rational trier of fact could conclude [she] was guilty of aiding and abetting" the offenses. The State responds that Breeding failed to preserve error because, when she moved for judgment of acquittal, she did not specifically mention aiding and abetting. But, as the State acknowledges, the theory was discussed by the prosecutor in her response to the motion. Specifically, the prosecutor stated "the element of intent, we have proven, at least by an aiding and abetting theory." There also was an extensive discussion of the aiding and abetting theory in connection with the drug-tax-stamp charge. It is evident from the discussion that all concerned knew the theory was in play. We conclude error was preserved. See State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005) ("[W]e recognize an exception to the general error-preservation rule when the record indicates that the grounds for a motion were obvious and understood by the trial court and counsel."); State v. Pena, No. 12-0082, 2013 WL 5745608, at *2 (Iowa Ct. App. Oct. 23, 2013) ("When it is obvious all are aware of the nature of the claimed defect in the State's case raised by the motion error is preserved.").

         We proceed to the merits. We will uphold a finding of guilt if it is supported by substantial evidence. See State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).

         The jury was instructed the State would have to prove the following elements of possession of a controlled substance with intent to deliver either as a principal or aider and abettor:

1. On or about September 26, 2016, the defendant or someone she aided and abetted knowingly possessed methamphetamine.
2. The defendant or someone she aided and abetted knew that the substance possessed ...

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