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State v. Shorter

Court of Appeals of Iowa

October 9, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
MONTREAL SHORTER, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Cynthia M. Moisan, District Associate Judge.

         Montreal Shorter appeals following conviction for possessing or carrying a dangerous weapon while under the influence.

          Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant Appellate Defender, for appellant.

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

          Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.

          BOWER, JUDGE.

         Montreal Shorter appeals his conviction for possessing or carrying a dangerous weapon while under the influence. We reject Shorter's claims of allegedly faulty jury instructions and ineffective assistance of counsel and affirm his conviction.

         I. Background Facts.

         On December 23, 2017, at about two in the morning, Shorter and a friend tried to enter the Minx Show Palace. Earlier that night they had been drinking. Minx's two bouncers, Anthony Weber and Matthew Carroll, asked Shorter if he had any knives or guns on him. Shorter told them he "kept his shit in the car." The bouncers denied Shorter and his friend entrance for failing to meet the dress code. Shorter's friend confronted Weber and was pepper sprayed. Some of the spray hit Shorter.

         Meanwhile, Carroll called the Polk County Sheriff to report the incident. Shorter declared he was "going to get his gun," then walked to his driver's door, opened it, and reached for something toward the center console. Both bouncers saw something in Shorter's hand, though they could not identify it.

         As Shorter leaned back out of his car, police approached the Minx parking lot with sirens blaring and lights flashing. Shorter set whatever he was holding down and walked away from the car. Police spoke with Shorter, who repeatedly denied having had anything to drink even though he was slurring his words and staggering. A later preliminary breath test ("PBT") indicated Shorter's blood alcohol level was 0.113.

         While deputies spoke with Shorter, Deputy Bradley Hook looked in the open driver's door of Shorter's car. The deputy saw a pistol on top of the center console. When told he "can't carry a gun while drunk," Shorter insisted he was not drunk. He did not deny carrying his pistol.

         At trial, Shorter told the jury he never opened his car door after being pepper sprayed at Minx. He denied touching his pistol when intoxicated, though he admitted being drunk and having his pistol in his car. Shorter told the jury he always kept his pistol in the center console, but acknowledged that if it was found on top of the center console, that is where he left it.

         Shorter's trial counsel objected to the proposed jury instruction of the elements of the offense of carrying a dangerous weapon while under the influence, [1] asserting it incorrectly included the word "possesses." He also objected to another instruction ...


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