State of Iowa v. Travis Lyle Starr

IN THE COURT OF APPEALS OF IOWA

No. 22-0277
Filed August 9, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

TRAVIS LYLE STARR,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Story County, James B. Malloy,

District Associate Judge.

The defendant challenges the sufficiency of the evidence supporting his

conviction for first-degree harassment. AFFIRMED.

John L. Dirks of Dirks Law Firm, Ames, for appellant.

Brenna Bird, Attorney General, and Thomas J. Ogden, Assistant Attorney

General, for appellee.

Considered by Greer, P.J., Ahlers, J., and Potterfield, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023).
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POTTERFIELD, Senior Judge.

Travis Starr challenges the sufficiency of the evidence supporting his

conviction for first-degree harassment. We review challenges to the sufficiency of

the evidence for correction of errors at law. State v. Sanford, 814 N.W.2d 611,

615 (Iowa 2012). We affirm when the verdict is supported by substantial evidence,

meaning “the quantum and quality of evidence is sufficient to ‘convince a rational

fact finder that the defendant is guilty beyond a reasonable doubt.’” State v. Banes,

910 N.W.2d 634, 637 (Iowa Ct. App. 2018) (citation omitted). In conducting our

review, we consider the evidence in the light most favorable to the verdict,

including all reasonable inferences that may be fairly drawn from the evidence. Id.

At the underlying criminal trial, Officer Lane Thayer testified he detained

Starr on an unrelated matter, at which time Officer Thayer smelled alcohol coming

from Starr’s person and noted he had bloodshot, watery eyes. While Starr was

being detained at the police station, he was handcuffed to a bench, where he sat.

Video exhibits introduced by the State show Starr lunging at Officer Thayer, who

was outside of his reach. Starr also told Officer Thayer, “I’ll fucking kill you when I

get out of here.” Based on this statement, Starr was charged with first-degree

harassment.

The jury was instructed that Starr was guilty of first-degree harassment if

the State proved the following:

1. On or about August 8, 2021, Travis Starr purposefully
and without legitimate purpose had personal contact with Officer
Lane Thayer.
2. Mr. Starr communicated a threat to commit the crime of
murder . . . .
3. Mr. Starr did so with the specific intent to threaten,
intimidate, or alarm Officer Lane Thayer.
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The jury found Starr guilty as charged, and he appealed. Here, Starr argues

there is not substantial evidence he had the specific intent to threaten, intimidate,

or alarm Officer Thayer. He also argues he had a “legitimate purpose” in telling

Officer Thayer he would kill him.

Specific Intent. Starr argues there is not substantial evidence he had

the specific intent needed to commit first-degree harassment. He relies on the

affirmative defense of intoxication, claiming the evidence showed his level of

intoxication made him incapable of forming the requisite intent. See State v.

Guerrero Cordero, 861 N.W.2d 253, 258 (Iowa 2015), overruled on other

grounds by Alcala v. Marriott Intern., Inc., 880 N.W.2d 707–08 (Iowa 2016).

“From the beginning, the [intoxication] defense has been applied in Iowa only

to specific-intent crimes, not those of general intent.” Id. at 259. And “before

intoxication could prevent a finding of specific intent, the offender not only had to

be intoxicated, but so intoxicated that he or she could no longer reason and was

incapable of forming a felonious intent.” Id. When a defendant invokes the

intoxication defense, “the State retains the burden of proving the element of

specific intent.” State v. Templeton, 258 N.W.2d 380, 383 (Iowa 1977).

Starr gave notice before trial that he intended to rely upon the affirmative

defense of intoxication. And there was evidence introduced at trial that Starr was

consuming alcohol before he was detained by Officer Thayer. Officer Thayer

testified about Starr’s bloodshot, watery eyes and being able to smell alcohol

coming from him. And Starr testified he drank nearly two pints of whiskey during

a short window of time a few hours before Officer Thayer detained him. Thus, a
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number of facts support Starr’s claim that he was intoxicated at the time he made

the threatening statement to Officer Thayer. And, normally, “when a defendant

urges a defense of voluntary intoxication which is supported by substantial

evidence, such evidence is to be considered by the jury on the material issue in

the State's case upon which it bears . . . .” Id. at 380.

But here, the jury was not instructed on the intoxication defense, and Starr

never asked for the instruction to be given.1 “[O]bjections to giving or failing to give

jury instructions are waived on direct appeal if not raised before counsel’s closing

arguments, and the instructions submitted to the jury become the law of the case.”

State v. Fountain, 786 N.W.2d 260, 262 (Iowa 2010). Because the jury was not

instructed to consider whether Starr’s level of intoxication impacted his ability to

form specific intent, and because the instructions as given are the law of the case,

we do not reach the merits of Starr’s claim that the jury should have acquitted him

based on his intoxication and resulting incapacity to form the requisite intent. See

State v. Canal, 773 N.W.2d 528, 530 (Iowa 2009) (explaining that when a

defendant does not “object to the instructions given to the jury at trial . . . the jury

1 While no instruction was given in this case, for reference, the model instruction

for “intoxication as a defense” states:
The defendant claims he was under the influence of
intoxicants at the time of the alleged crime. The fact that a person is
under the influence of intoxicants does not excuse nor aggravate
[his] [her] guilt.
Even if a person is under the influence of an intoxicant, he is
responsible for his act if he had sufficient mental capacity to form the
specific intent necessary to the crime charged or had the specific
intent before he fell under the influence of the intoxicant and then
committed the act. Intoxication is a defense only when it causes a
mental disability which makes the person incapable of forming the
specific intent.
Iowa Crim. Jury Instructions 200.14 (emphasis added).
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instructions become the law of the case for purposes of our review of the record

for sufficiency of the evidence”).

Legitimate Purpose. Starr maintains the State failed to prove he was

without “legitimate purpose” when he told Officer Thayer “I’ll fucking kill you when

I get out of here.” On appeal, he argues his statement to Officer Thayer was akin

to the statements made by the defendant in State v. Fratzke, 446 N.W.2d 781, 784

(Iowa 1989), where our supreme court reversed the defendant’s harassment

conviction after concluding his statements served the legitimate purpose of

protesting governmental action.

We reject Starr’s contention. As a preliminary matter, we note that the

“legitimate purpose” that would avoid violation of the harassment statute refers not

to a legitimate purpose for the personal contact, but a legitimate purpose to

threaten, intimidate, or alarm. State v. Evans, 672 N.W.2d 328, 331 (Iowa 2003)

(“Because there must be a specific intent to threaten, intimidate, or alarm, the only

legitimate purpose that will avoid the criminal status conferred by the statute would

be a legitimate purpose to threaten, intimidate, or alarm.”). So, while Starr may

have had a legitimate purpose for having personal contact with Officer Thayer—to

protest government action—he points to no legitimate purpose to threaten,

intimidate, or alarm while doing so. As such, there was sufficient evidence to allow

the jury to find that Starr acted without legitimate purpose.

Turning to Starr’s constitutional claim based on Fratzke, we note that our

supreme court relied on Fratzke in concluding that the harassment statute’s

requirement that the defendant’s conduct be without legitimate purpose is one

reason why the statute does not infringe on First Amendment rights. See id. (“In
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[Fratzke], we held that First Amendment considerations raised with respect to

subsection (1)(a) of this statute were obviated because of the requirement that the

communication be ‘without legitimate purpose.’ A similar requirement exists with

respect to the contact that is criminalized under subsection (1)(b) of the statute.”).

The defendant in Fratzke “wrote a nasty letter to a state highway patrolman

to protest a speeding ticket.” 446 N.W.2d at 781. The letter was mailed, along

with the defendant’s payment of a fine and court costs, to the county clerk of court.

Id. The letter was addressed to the state trooper who arrested him and included

comments “characterizing his speeding arrest as a case of ‘legalized highway

robbery,’” claiming “the trooper’s conduct resulted in an unfair trial that was the

product of highway safety priorities gone askew,” and “accus[ing] [the trooper] of

being a liar as well as a ‘thief disguised as a protector’” because he “refused to

show the defendant the radar equipment at the scene.” Id. at 781. The defendant

went further, claiming the trooper “just enjoys stealing people’s money so he can

show everyone what a red-necked m*th*r-f*ck*r he is” and, in closing, “expressed

the wish—'not to be interpreted as anything whatsoever in the way of a threat’—

that [the trooper] ‘have an early and particularly painful death hopefully at the side

of a road somewhere where he's robbing someone else.’” Id. (asterisks in original).

The district court apparently found the defendant’s letter to be a legitimate citizen

complaint but concluded his “language and terms” violated the law “against

communications written ‘without legitimate purpose.’” Id. at 784. Our supreme

court reversed the defendant’s conviction, ruling, “This distinction drawn by the trial

court between the words used and the communication itself raises the decisive

question on this appeal: Can the use of offensive language negate (and thereby
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criminalize) the otherwise legitimate purpose of protesting governmental action?

We think not.” Id.

As with the defendant in Fratzke, Starr was criminally charged and

convicted based on his speech. Generally speaking, the First Amendment to the

United States Constitution “prevents states from punishing ‘the use of words or

language not within “narrowly limited classes of speech.”’” State v. Milner, 571

N.W.2d 7, 13 (Iowa 1997) (quoting Gooding v. Wilson, 405 U.S. 518, 521–22

(1972)). And “the First Amendment protects a significant amount of verbal criticism

and challenge directed at police officers. . . . The freedom of individuals verbally

to oppose or challenge police action without thereby risking arrest is one of the

principal characteristics by which we distinguish a free nation from a police state.”

City of Houston v. Hill, 482 U.S. 451, 461–62 (1987). That said, some categories

of speech fall outside the protection of the First Amendment. See, e.g.,

Counterman v. Colorado, 143 S. Ct. 2106, 2113–14 (2023) (recognizing “historical

and traditional categories” of unprotected speech, including incitement,

defamation, obscenity, and true threats). “True threats of violence are outside the

bounds of First Amendment protection and punishment as crimes.” Id. at 2111.

“True threats are ‘serious expression[s]’ conveying that a speaker means to

‘commit an act of unlawful violence.’” Id. at 2114 (citation omitted). “The ‘true’ in

that term distinguishes what is at issue from jests, ‘hyperbole,’ or other statements

that when taken in context do not convey a real possibility that violence will follow

(say, ‘I am going to kill you for showing up late’).” Id. Here, Starr physically lunged

at Officer Thayer. While his restraints prevented him from making contact with the

officer, the action bolsters the conclusion that his threat to kill Officer Thayer was
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more than just bluster. Starr’s “actions went beyond mere criticism of police

conduct. They were threats. The First Amendment ‘does not protect speech that

constitutes a true threat.’” State v. Howard, No. 99-0890, 2000 WL 962655, at *3

(Iowa Ct. App. July 12, 2000) (quoting Milner, 571 N.W.2d at 14). We conclude

there is substantial evidence Starr’s statement was a true threat and, therefore,

did not have a legitimate purpose.

We affirm Starr’s conviction.

AFFIRMED.