State of Iowa v. Reginald Creshawn Doss

IN THE COURT OF APPEALS OF IOWA

No. 21-1717
Filed August 17, 2022

STATE OF IOWA,
Plaintiff-Appellee,

vs.

REGINALD CRESHAWN DOSS,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Jeffrey Farrell, Judge.

A defendant appeals his conviction and sentence for possession of

marijuana with intent to deliver, in violation of Iowa Code section 124.401(1)(d)

(2021). CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED

FOR RESENTENCING.

Austin Jungblut of Parrish, Kruidenier, Dunn, Gentry, Brown, Bergmann &

Messamer L.L.P., Des Moines, for appellant.

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

General, for appellee.

Considered by Ahlers, P.J., Chicchelly, J., and Danilson, S.J.*
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CHICCHELLY, Judge.

Reginald Doss appeals his conviction and sentence for possession of

marijuana with intent to deliver, in violation of Iowa Code section 124.401(1)(d)

(2021). He disputes the sufficiency of the evidence, propriety of an officer’s

testimony, and sentence imposed. Finding the first two arguments without merit,

we affirm the conviction. Because there was a defect in sentencing, we vacate the

sentence imposed and remand for resentencing.

I. Background Facts and Proceedings.

On March 29, 2021, a plain-clothed police officer observed Doss walk from

a restaurant to his vehicle, open and close his gas cap, and begin to drive away.

The officer knew Doss had an active arrest warrant and relayed his observation to

dispatch. After a uniformed officer arrived, the two officers detained and arrested

Doss without incident. The officers reported a strong smell of marijuana upon

approaching the vehicle. They seized a plastic bag containing three individual

baggies of marijuana from inside the gas cap. Each baggie held a similar weight

of marijuana—3.27, 3.27, and 3.34 grams. Inside the vehicle, they found two

boxes of sandwich baggies, three cell phones, and $4800 cash. They also found

a bottle of cologne that looked like a cigar. At trial, an officer testified that 3.50

grams is a common increment to sell narcotics but that some dealers sell light

bags. A jury convicted Doss of possessing marijuana with intent to deliver.

The State initially charged Doss as a habitual offender based on prior felony

convictions in Iowa and Illinois. Doss stipulated to his Iowa convictions but claimed

there was insufficient evidence to confirm those in Illinois. The three Iowa

convictions could only constitute one felony for purposes of the habitual offender
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sentencing enhancement because they were entered on the same date. See State

v. Hollins, 310 N.W.2d 216, 217 (Iowa 1981). The court granted the State’s motion

for a continuance in order to prove up the Illinois convictions. Before a sentencing

hearing could be held, the State agreed to drop the habitual offender

enhancement. Doss signed a waiver allowing for written sentencing without

personal presence, which acknowledged that the State dropped the enhancement

and would recommend a five-year term of incarceration. Doss never made a

recommendation as to his sentence. The court entered a written order sentencing

Doss to a term of incarceration not to exceed five years. Doss filed a timely appeal.

II. Review.

We review challenges to the sufficiency of the evidence for correction of

errors at law. State v. Ernst, 954 N.W.2d 50, 54 (Iowa 2021). We view the

evidence in the light most favorable to the State, taking into consideration all

reasonable inferences that could fairly be made by the jury. Id. We will uphold the

conviction if supported by substantial evidence, which “exists when the evidence

‘would convince a rational fact finder the defendant is guilty beyond a reasonable

doubt.’” Id. (citation omitted).

As for the testimony Doss challenges, we review evidentiary issues for an

abuse of discretion. See State v. Dessinger, 958 N.W.2d 590, 597 (Iowa 2021).

We review sentencing orders for abuse of discretion when the sentence is

within statutory limits. State v. Guise, 921 N.W.2d 26, 30 (Iowa 2018). Abuse of

discretion occurs when “the district court exercises its discretion on grounds or for

reasons that were clearly untenable or unreasonable.” Id. (citation omitted).
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III. Discussion.

A. Sufficient Evidence.

Doss argues there is insufficient evidence to support the intent-to-deliver

element of his conviction. He points out that all three baggies seized contained

approximately the same amount of marijuana, which totaled less than ten grams

and was consistent with personal usage. However, additional circumstantial

evidence—the individual wrapping of the marijuana, as well as the phones,

additional baggies, and cash in Doss’s possession—tips the scales toward an

intent to deliver. See State v. Clarke, 475 N.W.2d 193, 197 (Iowa 1991)

(“Circumstantial evidence is particularly valuable when proving a mental state like

intent which is seldom susceptible to proof by direct evidence.”); State v. Adams,

554 N.W.2d 686, 692 (Iowa 1996) (upholding a conviction when a small amount of

drugs was combined with a large amount of cash because the jury could

reasonably infer some drugs were already sold).

The jury was free to believe Doss obtained the marijuana for personal usage

rather than distribution. See State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014)

(noting the fact finder is “free to reject certain evidence, and credit other evidence”

(citation omitted)). As a threshold matter, however, there is sufficient evidence for

a rational fact finder to find Doss guilty beyond a reasonable doubt. Therefore, we

affirm his conviction.

B. Plain Error.

Doss argues a law enforcement officer impermissibly testified to the ultimate

fact of his guilt or innocence by stating directly that the evidence was consistent

with an intent to deliver. Doss concedes this issue was not properly preserved for
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our review. He urges us to overlook this shortcoming by adopting plain error

review. However, the Iowa Supreme Court ruled just last year: “We have

repeatedly rejected plain error review and will not adopt it now.” State v. Treptow,

960 N.W.2d 98, 109 (Iowa 2021); accord State v. Rutledge, 600 N.W.2d 324, 325

(Iowa 1999) (“We do not subscribe to the plain error rule in Iowa, have been

persistent and resolute in rejecting it, and are not at all inclined to yield on the

point.”). We decline to disturb such steadfast precedent without further guidance

from our supreme court.

C. Sentencing Discretion.

Doss alleges the district court abused its discretion in sentencing him to a

term of incarceration not to exceed five years. He alleges the court relied on an

inappropriate factor because a box was checked on the court’s order of disposition

indicating there was a joint sentencing recommendation when, in fact, there was

no joint recommendation. Specifically, the checked box read:

WRITTEN SENTENCING. Consistent with the record made herein,
Defendant knowingly and voluntarily waives right to be present and
make a formal record at sentencing and requests the Court instead
proceed on this matter in writing and adopt the parties joint
sentencing recommendation as set forth in the parties’ filings. The
Court accepts Defendant’s waivers and request. The Court shall
adopt the parties’ joint sentencing recommendation and shall
proceed in this matter based on the filings of the parties and pursuant
to the authority granted by the orders of the Iowa Supreme Court in
light of the COVID-19 pandemic.

The State points to the Iowa Supreme Court order of May 22, 2020,

regarding provisions for COVID-19 for authority to proceed with written

sentencing. However, this order—and the most recent order in effect at the

time of Doss’s sentencing—permitted written sentencing “where the
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prosecutor and defendant have reached an agreement as to sentence.”

See Iowa Supreme Ct. Supervisory Order, In the Matter of Ongoing

Provisions for Coronavirus/COVID-19 on Court Services ¶ 17 (Nov. 24,

2020), available at https://www.iowacourts.gov/collections/585/files/1248/e

mbedDocument/. The State acknowledges there was no joint sentencing

recommendation by the parties. Therefore, an erroneous application of law

occurred when the district court proceeded with written sentencing. “A

ground or reason [for exercising sentencing discretion] is untenable when it

is not supported by substantial evidence or when it is based on an

erroneous application of the law.” State v. Putman, 848 N.W.2d 1, 7 (Iowa

2014) (citation omitted). Because written sentencing was impermissible

absent a joint recommendation, we vacate Doss’s sentence and remand for

resentencing.

IV. Disposition.

Because sufficient evidence supports the defendant’s conviction and error

was not preserved on his evidentiary challenge, we affirm Doss’s conviction. We

vacate Doss’s sentence and remand for resentencing due to an erroneous

application of the law.

CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED

FOR RESENTENCING.

Ahlers, P.J., concurs; Danilson, S.J., concurs specially.
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DANILSON, S.J. (concurring specially).

I concur specially to add that the validity of a sentencing order where the

defendant’s presence is waived is highly dependent on the paper trail leading up

to the issuance of the sentencing order. Here, there may well have been an

agreement of a joint sentencing recommendation, and the court may have followed

that recommendation, but the waiver of presence document misstates the

existence of a “plea agreement” and the terms of the agreement are not sufficiently

explicit.