In the Court of Appeals of Iowa s1

IN THE COURT OF APPEALS OF IOWA

No. 5-839 / 04-1684 Filed March 1, 2006

STATE OF IOWA, Plaintiff-Appellee, vs.

DAVID LEWIS CLARK, Defendant-Appellant. ______

Appeal from the Iowa District Court for Wapello County, Kirk A. Daily,

District Associate Judge.

David Clark appeals his judgment and sentence for carrying weapons, operating while intoxicated, and prohibited acts. AFFIRMED.

Dean Stowers and Heather Wood of Rosenberg, Stowers & Morse, Des

Moines, for appellant.

Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, and Mark Tremmel, County Attorney, for appellee-State. 2

Heard by Zimmer, P.J., and Miller and Vaitheswaran, JJ.

VAITHESWARAN, J.

David Clark appeals his judgment and sentence for carrying weapons, operating while intoxicated, and prohibited acts, raising several arguments in support of reversal. Finding no error, we affirm.

I. Background Facts and Proceedings

Jeremy Weller, a Wapello County volunteer reserve deputy sheriff, observed a red pickup truck with Florida license plates moving erratically on the streets of Ottumwa. He contacted a dispatcher at the Ottumwa Police

Department who, in turn, contacted Officer Steve Kovacs. Weller followed the vehicle through town until he met up with Kovacs. Weller pointed to the pickup truck, gave a “thumbs up” sign to indicate the truck was the one he reported, and gestured that it appeared the driver of the truck had been drinking. Weller then went home.

Officer Kovacs stopped the vehicle. He observed signs of intoxication and saw open bottles of liquor in the rear of the truck. Clark consented to field sobriety tests, many of which he failed. He was arrested.

Officer Kovacs searched the truck and found a loaded .45 caliber handgun along with several rounds of ammunition, two antique muskets, a loaded 9 mm handgun, a substance he believed to be marijuana, cigarette rolling papers, and several prescription bottles, including one containing Lorazapam.

Two of the prescription bottles had Clark’s name on them and four were affixed with other people’s names. 3

The State charged Clark with carrying weapons, operating while intoxicated or drugged, possession of marijuana, and prohibited acts (possession of a prescription drug without a prescription). Iowa Code §§ 724.4, 321J.2,

124.401(5), 155A.23(1)(b) and 124.401 (2003).1 Clark moved to suppress all evidence obtained as a result of the vehicle stop. Following a hearing, the district court denied the motion.

Clark moved to reopen the record to allow him to address the “shared information” doctrine, discussed by the district court in its suppression ruling.

The district court granted the motion to reopen but refused to reconsider its prior ruling.

Following trial, the jury found Clark guilty of carrying weapons, operating while intoxicated, and prohibited acts, but found him not guilty of the marijuana possession charge. The district court imposed sentence and Clark appealed.

On appeal, Clark argues the district court: (1) should have found an absence of reasonable suspicion to stop his vehicle, (2) erred in denying his motion for judgment of acquittal on the charges of prohibited acts and carrying weapons, (3) erred in rejecting his proposed jury instructions on the charges of carrying weapons and prohibited acts, and (4) abused its discretion in allowing the jury to view a videotape of the vehicle stop when the videotape was not played in open court.

1The State later amended the trial information to remove the reference to section 155A.23. 4

II. Reasonable Suspicion to Stop Vehicle

Clark takes issue with two aspects of the court’s suppression ruling:

(A) the admission of three deposition transcripts over his hearsay objection and

(B) reliance on the shared information doctrine.

A. Admission of Deposition Transcripts. The district court ruled that the deposition transcripts of Officer Kovacs, volunteer reserve deputy Weller, and another officer were admissible at the suppression hearing, over Clark’s hearsay objection. The State asks us to affirm that ruling under Iowa Rules of Evidence

5.1101(c)(4) and 5.104(a).

Rule 5.1101(c)(4) provides that the rules of evidence are inapplicable in

“preliminary hearings in criminal cases.” Although this rule authorizes the admission of hearsay evidence in “preliminary hearings,” we believe that term is a term of art that does not encompass suppression hearings. See Iowa R. Crim.

P. 2.2(4)(a).

As for Rule 5.104(a), the relevant portion of the rule states that, in making a determination about “[p]reliminary questions concerning . . . the admissibility of evidence” a court is not bound by the rules of evidence except those with respect to privileges. By its terms, the rule simply allows courts to consider hearsay evidence on preliminary questions such as the unavailability of witnesses. See

State v. Wright, 378 N.W.2d 727, 731 (Iowa Ct. App. 1985). See also State v.

Tangie, 616 N.W.2d 564, 570 (Iowa 2000) (stating “decisions on admissibility made pursuant to Iowa Rule of Evidence 104(a) may be made by the court without respect to the rules of evidence, including those concerning hearsay.”). 5

The rule does not allow the district court to admit deposition transcripts in suppression hearings on a wholesale basis, without a showing of unavailability.

See Iowa R. Evid. 5.804(b)(1).

We recognize Rule 5.104(a) has been read to authorize the admission of hearsay evidence at suppression hearings. State v. Frake, 450 N.W.2d 817, 819

(Iowa 1990) (noting hearsay testimony is permitted at suppression hearing under rule 5.104(a)). Cf. State v. Bailey, 452 N.W.2d 181, 183 (Iowa 1990) (overruled on other grounds by State v. Heminover, 619 N.W.2d 353 (Iowa 2000)) (stating court has latitude to allow hearsay testimony in determining existence of reasonable suspicion to make investigatory stop to the same extent as in the determination of probable cause for issuance of a warrant); but see State v.

Williams, 367 N.W.2d 314, 317 (Iowa Ct. App. 1985) (stating efforts by police to repeat hearsay statements were properly objected to as hearsay); cf. United

States v. Matlock, 415 U.S. 164, 175, 94 S. Ct. 988, 995, 39 L. Ed. 2d 242, 252

(1974) (holding hearsay evidence should not have been automatically excluded in suppression hearing). We are not persuaded, however, that these opinions categorically authorize the admission of all hearsay evidence at these hearings.

Assuming without deciding that it was error to admit the deposition transcripts in their entirety without a showing of unavailability, we believe the error was not prejudicial. State v. Mattingly, 220 N.W.2d 865, 869 (Iowa 1974).

Officer Kovacs, the individual who stopped Clark’s vehicle, testified at the suppression hearing and was subject to cross-examination. He narrated Weller’s involvement, as well as the other officer’s involvement, without objection. 6

Therefore, the challenged deposition testimony properly entered the record through an alternate route.

B. Shared Information Doctrine. In denying the suppression motion, the district court relied on the shared information doctrine, which provides that when police officers are acting in concert, the knowledge of one is presumed by all. See State v. Owens, 418 N.W.2d 340, 342 (Iowa 1988). Clark argues that

Weller was not a “peace officer,” and Weller and Officer Kovacs were not acting in concert.

We need not address whether Weller was a “peace officer” and whether he was acting in concert because, at a minimum, Weller was a citizen informant on whose information Officer Kovacs could rely. State v. Walshire, 634 N.W.2d

625, 630 (Iowa 2001). Based on Weller’s information, Officer Kovacs knew there was a possible drunk driver in a red vehicle with Florida license plates. This information was sufficient to establish reasonable suspicion for the investigatory stop. See State v. Kreps, 650 N.W.2d 636, 642 (Iowa 2002) (“Whether reasonable suspicion exists for an investigatory stop must be determined in light of the totality of the circumstances confronting a police officer, including all information available to the officer at the time the decision to stop is made.”).

III. Ruling on Motion for Judgment of Acquittal

Clark challenges the district court’s ruling on his motion for judgment of acquittal. Our review is for corrections of errors of law. State v. Henderson, 696

N.W.2d 5, 7 (Iowa 2005). We will uphold the district court’s ruling if it is supported by substantial evidence. Id. 7

A. Prohibited Acts. Section 124.401 provides, in part:

It is unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner’s professional practice, or except as otherwise authorized by this chapter.

Iowa Code § 124.401(5) (2003).

Clark contends section 124.401(5) does not criminalize possession of a prescription drug if the prescription holder obtained the drug pursuant to a validly issued prescription. He states the Lorazapam he was found guilty of possessing belonged to his girlfriend’s mother, she lived with him in Florida, and she obtained the drug pursuant to a validly issued prescription. See Iowa Code

§124.308(3) (requiring a practitioner’s written or oral prescription for a controlled substance to an “ultimate user”). See also Iowa Code § 124.101(27) (defining

“ultimate user” as “a person who lawfully possesses a controlled substance for the person’s own use or for the use of a member of the person’s household”).

While appealing at first blush, Clark’s argument ignores the term “directly” in section 124.401(5). Specifically, the statute states that it is unlawful to possess a controlled substance unless it was obtained “directly” from or pursuant to a valid prescription. The term “directly” would be meaningless if “pursuant to a valid prescription” could be read as Clark would have us read it. State v.

Brustkern, 170 N.W.2d 389, 391 (Iowa 1969).

As for the sufficiency of the evidence supporting this charge, we recognize Clark’s girlfriend’s mother was a member of his household and Clark testified he picked up prescriptions for her “all the time.” However, she was not 8 in the vehicle with him when it was stopped in Iowa. Additionally, Officer Kovacs testified that Clark told him he sometimes used those pills to help him sleep.

While Clark disputed this testimony, the jury was free to credit the officer’s version of events. State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). We conclude the district court did not err in denying Clark’s motion for judgment of acquittal on the prohibited acts charge.

B. Carrying Weapons. Clark next argues the district court erred in denying his motion for judgment of acquittal on the carrying weapons charge.

Iowa Code section 724.4 makes it unlawful to carry a concealed weapon within the limits of any city, subject to certain exceptions. Clark contends he fell within an exception because he possessed a valid concealed weapons permit issued by the State of Florida.

The permit exception states that the prohibition on carrying concealed weapons does not apply to:

A person who has in the person’s possession and who displays to a peace officer on demand a valid permit to carry weapons which has been issued to the person, and whose conduct is within the limits of that permit. A person shall not be convicted of a violation of this section if the person produces at the person’s trial a permit to carry weapons which was valid at the time of the alleged offense and which would have brought the person’s conduct within this exception if the permit had been produced at the time of the alleged offense.

Iowa Code § 724.4(3)(i).

Once again, Clark’s argument is appealing at first blush. However, we agree with the district court that section 724.4(3)(i) must be read within the context of the entire chapter. State v. Pickett, 671 N.W.2d 866, 870 (Iowa 2003). 9

The chapter imposes several requirements for obtaining a weapons permit. For example, a nonresident application for a weapons permit must be made to the

Iowa commissioner of public safety. Iowa Code § 724.11. In addition, an applicant must complete an application approved by the Iowa commission of public safety, and must submit to a criminal history check. Iowa Code § 724.10.

And, a permit applicant must complete a firearms training program approved by the Iowa commission of public safety. Iowa Code § 724.9. In light of these provisions, we agree with the district court that Clark’s possession of a Florida concealed weapons permit did not trigger the permit exception to Iowa’s concealed weapons ban.

As for the sufficiency of the evidence, there was no dispute that Clark possessed loaded weapons when he was detained by Officer Kovacs. We conclude the district court did not err in denying Clark’s motion for judgment of acquittal.

IV. Proposed Jury Instructions

Clark proposed jury instructions that were consistent with his reading of the prohibited acts and concealed weapons statutes. The district court declined to give those instructions. As we agree with the district court’s reading of the two statutes, we conclude the court did not err in refusing to instruct the jury as Clark proposed.

V. Videotape of Vehicle Stop

Prior to closing arguments, Clark objected to the jury’s receipt of the videotape of the vehicle stop because it was not first played in open court. The 10 district court rejected this objection, noting that the tape “was admitted without objection.” Our review of this issue is for an abuse of discretion. State v.

Dullard, 668 N.W.2d 585, 589 (Iowa 2003). We discern no abuse.

At the close of evidence, Clark’s attorney argued the tape should not go back to the jury because “the contents of the tape and what is depicted on the tape is not in evidence.” He continued,

What is in evidence is the physical tape as a demonstration that there was a tape made of the stop, and that they have possession of it. But they elected not to present that in open court to the jury. And it’s my position to present that now is presentation of evidence after their case is concluded.

This is the only argument he made to support his assertion that the tape should not be sent to the jury. As the district court noted, the videotape was properly admitted without objection. Therefore, its contents were properly in evidence as well.

On appeal, Clark recasts his argument to mirror the grounds for reversal cited in a federal opinion. See United States v. Noushfar, 78 F.3d 1442, 1444-45

(9th Cir. 1996). 2 Those grounds were not raised before the district court and accordingly are not a proper subject of appeal.3 State v. Webb, 516 N.W.2d 824,

828 (Iowa 1994).

VI. Disposition 2 See also State v. Miller, 535 N.W.2d 144, 147 (Iowa Ct. App 1995) (outlining several factors to be considered in deciding whether the district court abused its discretion in granting a jury’s request to replay a tape that was properly admitted and played during trial).

3 The State argues, in the alternative, that “any error [in admitting the tape] was harmless beyond a reasonable doubt.” Even if we wanted to, we could not reach this alternate argument because the record transmitted to us does not include the videotape. 11

We affirm Clark’s judgment and sentence.

AFFIRMED.