IN THE COURT OF APPEALS OF IOWA

No. 14-1976

Filed April 27, 2016

STATE OF IOWA,

Plaintiff-Appellee,

vs.

JONATHAN KAY DAVIS,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Story County, Lawrence E. Jahn, 

Judge.

Defendant appeals his conviction for operating while intoxicated 

(marijuana), first offense, in violation of Iowa Code section 321J.2 (2013). 

AFFIRMED.

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

Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney 

General, and Joseph Nehring, Student Legal Intern, for appellee.

Heard by Potterfield, P.J., and Mullins and McDonald, JJ.
2

MCDONALD, Judge.

Jonathan Davis appeals his conviction for operating while intoxicated in 

violation of Iowa Code section 321J.2 (2013). Davis claims his counsel provided 

constitutionally-deficient representation in failing to make several interrelated 

challenges to the statute, the marshaling instruction, and the evidence. Davis 

also argues the district court abused its discretion in denying his motion for 

mistrial after one of the State’s witnesses testified Davis stated he previously 

used crack.

1

 

In August 2014, Davis was charged with operating while intoxicated

(marijuana), first offense, in violation of Iowa Code section 321J.2. The matter 

was tried to a jury. The trial record showed the following. On August 17, 2014, 

Davis was driving on Highway 30. Davis passed a pickup truck pulling a thirtytwo foot trailer. When Davis’s vehicle was approximately twenty to thirty feet in 

front of the pickup truck, Davis’s vehicle drifted onto the left shoulder of the 

highway. Davis jerked the car to the right, overcorrecting the vehicle and causing 

it to turn perpendicular to the road. The driver of the pickup truck “hit the brakes 

hard” and struck the rear fender of Davis’s vehicle. Davis’s car went into the 

ditch, and the truck went into the median. The trailer broke from the tow hitch 

and flipped over. When a witness went to check on Davis, Davis accelerated out 

of the ditch and left the scene. The witness called 911. As soon as Davis left the 

 

1 Davis asserts for the first time in his reply brief that trial counsel failed to raise an equal 

protection challenge to the constitutionality of Iowa Code section 321J.2. “Parties 

cannot assert an issue for the first time in a reply brief.” Sun Valley Iowa Lake Ass'n v. 

Anderson, 551 N.W.2d 621, 642 (Iowa 1996). We do not consider the issue.
3

scene, a second witness followed Davis’s car down Highway 30, called 911, and 

directed law enforcement to Davis’s location. 

Deputy James Schroeder was the first to respond to the scene. With the

vehicle’s lights activated, Schroeder followed Davis’s car for approximately one 

and one-quarter miles before Davis finally pulled over. While following Davis’s 

vehicle, Deputy Schroeder observed Davis cross the center line. After being 

stopped and upon being questioned, Davis explained he was trying to find his 

cigarettes when he lost control of his car. Davis said he had not consumed 

alcohol but had taken his prescription medication around 4:00 a.m. or 5:00 a.m.

that morning. With Davis’s consent, Schroeder searched Davis’s car and found 

two pill bottles containing medication prescribed to Davis. Schroeder observed 

Davis’s pupils were constricted and Davis seemed confused. 

Deputy Hochberger also responded to the scene. He conducted a 

roadside impairment evaluation. Hochberger administered a convergence test, 

designed to determine whether Davis could cross his eyes. Davis showed a lack 

of convergence, which indicated he was under the influence of central-nervoussystem depressants, dissociative anesthetics, inhalants, or cannabis. 

Hochberger administered a modified Romberg test, in which Davis had to close 

his eyes, tilt his head back, and estimate when thirty seconds had passed. The 

results were inconclusive. Hochberger noted Davis had red, bloodshot eyes and 

constricted pupils. Both are indicia of marijuana use. Hochberger testified he 

believed Davis to be impaired. Upon request, Davis consented to go to the 

sheriff’s office for further testing. 
4

At the sheriff’s office, Deputy Schroeder read Davis the implied consent 

advisory. Schroeder testified Davis stopped him and stated Davis had smoked 

marijuana three days earlier. Davis consented to a breath test for alcohol, which 

showed no measurable quantity of alcohol. 

Deputy Elizabeth Quinn, a drug recognition expert, examined Davis at the 

sheriff’s office and requested Davis provide a urine sample. Davis explained to 

Quinn his left leg had been amputated as a result of peripheral artery disease. 

Davis told Quinn he was taking the following prescribed medications: 

hydrocodone, Diazepam, Adderall, Abilify, blood thinner medication, and blood 

pressure medication. Quinn gave Davis the modified Romberg test. Quinn 

testified that Davis told her the thirty seconds had passed when only twenty six 

seconds had passed and that Davis’s eyelids tremored during the test. Quinn 

testified both were consistent with marijuana use. Quinn observed heat bumps 

on the back of Davis’s tongue and a green film on his tongue, which, she 

testified, are indicia of recent use of marijuana. Davis stated he had been 

drinking Mountain Dew, which Quinn testified could have been a possible cause 

of the green film on Davis’s tongue. Quinn testified Davis demonstrated a lack of 

convergence and high blood pressure, which are indicia of marijuana use. Davis 

told Quinn he had used marijuana three to four days prior to the examination, but 

he later admitted it was only two days prior.

Susan Fleming, a criminalist with the Iowa Division of Criminal 

Investigations, performed a preliminary screening test of Davis’s urine sample. 

The urine test was positive for benzodiazepines, opiates, tamazepam, 

oxazepam, nordiazepam, diazepam, hydrocodone, dihydrocodone, and 
5

marijuana metabolites. Tracy Murano, a criminalist with the Iowa Department of 

Public Safety Crime Laboratory, ran a confirmation test on Davis’s urine sample. 

Murano confirmed the sample tested positive for 11-nor-9-carboxy-delta-9-

tetrahydrocannabinol, which is “a metabolite of THC, a metabolite of marijuana.” 

Murano testified she could not determine when the marijuana had been ingested. 

She also testified marijuana remains in a person’s body longer than other drugs. 

During the OWI trial, Deputy Quinn testified the defendant told her that he 

had previously used crack. She did not identify a date or indicate whether the 

usage was recent. Defense counsel immediately objected to the testimony and 

moved for mistrial. The district court sustained the objection, ordered the 

testimony struck, and admonished the jury to disregard the testimony. The 

district court denied the motion for mistrial. 

The following marshaling instruction (Instruction No. 12) was provided to 

the jury: 

You must find the defendant not guilty of Operating a Motor Vehicle 

While Intoxicated, unless the State proves by the evidence beyond 

a reasonable doubt each of the following elements:

1. That on or about August 17, 2014, the defendant was 

operating a motor vehicle in Story County, lowa; and either

2. (a) at the time the defendant was under the influence of 

marijuana; or (b) that at the time the defendant had in his body any 

amount of marijuana as measured by the Defendant's urine. It is 

not necessary for all jurors to agree to just (a) or (b). It is only 

necessary that all jurors agree to at least one of the two 

alternatives.

If you find the State has proven beyond a reasonable doubt 

each one of the elements, then you will find the defendant guilty of 

Operating a Motor Vehicle While Intoxicated; but, if you find the 

State has failed to prove beyond a reasonable doubt one or both of 
6

the elements, then you shall find the defendant not guilty of 

Operating a Motor Vehicle While Intoxicated.

The jury was provided with a general verdict form and found Davis guilty. He 

was convicted and sentenced to one year in jail, with all but seven days of the 

sentence suspended.

We first address Davis’s claim that his counsel failed to provide 

constitutionally-adequate representation. Our court reviews ineffective 

assistance of counsel claims de novo. State v. Clay, 824 N.W.2d 488, 494 (Iowa 

2012). Ineffective-assistance-of-counsel claims are normally preserved for 

postconviction relief actions. State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005). 

This is “particularly true where the challenged actions of counsel implicate trial 

tactics or strategy which might be explained in a record fully developed to 

address those issues.” State v. Rubino, 602 N.W.2d 558, 563 (Iowa 1999). On 

direct appeal, we will only resolve claims when the record is adequate. Clay, 824 

N.W.2d at 494. The record is adequate to resolve Davis’s claim in this direct 

appeal. 

Davis raises several interrelated claims of ineffective assistance of 

counsel. He argues his trial counsel should have challenged the constitutionality 

of the statute because it lacks a mens rea component and because there is no 

reasonable relationship between the presence of marijuana metabolites in the 

body of a motorist and the protection of the driving public. He argues his counsel 

should have objected to alternative (2)(b) of the marshaling instruction, which 

allowed conviction where “the defendant had in his body any amount of 

marijuana as measured by the defendant’s urine.” He argues his counsel should 
7

have introduced evidence showing the metabolites present in Davis’s urine were 

inactive and incapable of causing impairment. While Davis has packaged and 

repackaged his ineffective-assistance-of-counsel claims in several different 

boxes, each of the boxes contains the same core argument: section 321J.2 is 

unconstitutional to the extent a defendant can be convicted merely for having an 

inactive metabolite in his or her urine without proof the defendant had knowledge 

of the presence of the metabolite and proof of actual impairment.

To establish his claim of ineffective assistance of counsel, the defendant 

must show that his “trial counsel failed to perform an essential duty and that this 

failure resulted in prejudice.” State v. Kress, 636 N.W.2d 12, 20 (Iowa 2001). 

The defendant must prove both elements by a preponderance of the evidence, 

and if either element is absent, we affirm. Id. To establish trial counsel failed to 

perform an essential duty, Davis must establish “the attorney performed below 

the standard demanded of a reasonably competent attorney.” See Ledezma v. 

State, 626 N.W.2d 134, 142 (Iowa 2001). The attorney’s performance is 

measured against “prevailing professional norms,” and it is presumed the 

attorney performed competently. See id. The ultimate inquiry regarding 

prejudice is whether counsel’s allegedly deficient performance caused a 

complete “breakdown in the adversary process” such that the conviction is 

unreliable. See Strickland v. Washington, 466 U.S. 668, 687 (1984). This 

requires a showing “there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” 

Collins v. State, 588 N.W.2d 399, 402 (Iowa 1998) (citation and internal quotation 

marks omitted). “A reasonable probability is a probability sufficient to undermine 
8

confidence in the outcome of the defendant’s trial.” Id. (citation and internal 

quotation marks omitted).

Davis primarily relies on State v. Harris, 322 P.3d 160 (Ariz. 2014). In that 

case, the Arizona Supreme Court resolved a question of interpretation regarding 

its statute prohibiting driving “while under the influence of . . . any drug.” Harris, 

322 P.3d at 160. The court was presented with the question of whether the term 

“drug . . . or its metabolite” included “Carboxy-Tetrahydrocannabinol (‘CarboxyTHC’).” See id. The court reasoned the term “its metabolite” was ambiguous 

because it could be singular or plural. Id. at 162. If singular, the term 

encompassed only Hydroxy-THC, the primary metabolite of cannabis, which is 

also the active metabolite of cannabis capable of causing impairment. See id. at

161. If plural, the term “its metabolite” encompassed Carboxy-THC, a secondary 

metabolite, which is inactive and incapable of causing impairment. See id. The 

court reasoned the latter interpretation would lead to absurd results. See id. at 

162 (“The State’s interpretation that ‘its metabolite’ includes any byproduct of a 

drug listed in § 13–3401 found in a driver’s system leads to absurd results. . . .

Most notably, this interpretation would create criminal liability regardless of how 

long the metabolite remains in the driver’s system or whether it has any impairing 

effect.”). The court also reasoned that allowing conviction based on the mere 

presence of a metabolite of a controlled substance in the motorist’s blood or 

urine without proof of impairment was contrary to the Arizona legislature’s intent 

to prevent impaired driving. See id. at 164. The court held “[d]rivers cannot be 

convicted of the . . . offense based merely on the presence of a non-impairing 

metabolite that may reflect the prior usage of marijuana.” Id. 
9

The defendant’s reliance on Harris is misplaced. The question presented 

in this appeal is not whether Carboxy-THC, the metabolite found in the 

defendant’s urine, is a “controlled substance.” See Iowa Code § 321J.1(4) 

(defining “controlled substance” to include “any drug, substance, or compound 

that is listed in section 124.204 or 124.206, or any metabolite or derivative” of the 

same). Instead, the question presented in this appeal is whether Davis’s trial

counsel was ineffective, in the constitutional sense. With respect to the limited

question before this court, we conclude the defendant has failed to prove his 

claim. 

The challenges to the statute raised in this appeal were effectively 

foreclosed to Davis’s trial counsel. The supreme court has held section 321J.2 

allows conviction solely upon proof the defendant had “any amount” of a 

controlled substance in his body without regard to whether the defendant was 

actually impaired. See State v. Comried, 693 N.W.2d 773, 775 (Iowa 2005) 

(“Under these subsections, the State need not prove the defendant was under 

the influence-only that he was driving a motor vehicle with a specific amount of 

alcohol or drugs in his body. . . . As to controlled substances, ‘any amount’

violates the statute.”). The supreme court further concluded “the legislature likely 

included the ‘any amount’ language in the amendment to create a per se ban.” 

Id. at 776. “We are not at liberty to overrule controlling supreme court 

precedent.” State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014). 

This court has concluded the statutory regime survived constitutional 

challenge. In State v. Hodges, No. 10-0031, 2011 WL 944378, at *5 (Iowa Ct. 

App. Mar. 21, 2011), we held “Hodge’s substantive due process rights were not 
10

violated by Iowa Code section 321J.2(1)(c), and thus, his trial counsel did not 

render ineffective assistance by failing to challenge the constitutionality of this 

section.” In that case, the defendant argued his substantive due process rights

were violated 

because traces of controlled substances can remain in the body 

long after the impairment caused by the substance wears off,

prohibiting a person from driving with “any amount” of controlled 

substance in his body has no reasonable fit with the statute's 

purpose to protect the public on the roadways from impaired 

drivers.

Id. at *4-5. This is the same argument presented in this case. Similarly, in Loder 

v. Iowa Department of Transportation, 622 N.W.2d 513, 516 (Iowa Ct. App. 

2000), we concluded:

The lack of any numerical correlation or direct relationship between 

the amount of marijuana metabolites in a person’s system and the 

impairment of that person’s ability to drive does not foreclose the 

finding that the statute is rationally related to protecting the public. 

The statute is aimed at keeping drivers who are impaired because 

of the use of illegal drugs off the highways. Unlike the blood alcohol 

concentration test used to measure alcohol impairment there is no 

similar test to measure marijuana impairment. There is, though, as 

was used here, a test to measure the use of marijuana, a drug 

illegal in the State of Iowa, in a person’s body. There being no 

reliable indicator of impairment, the legislature could rationally 

decide that the public is best protected by prohibiting one from 

driving who has a measurable amount of marijuana metabolites.

The Ohio Court of Appeals rejected a similar challenge. We find the 

analysis persuasive:

Although, Mr. Whalen couches his arguments in terms of 

vagueness and overbreadth, his real quibble seems to be with the 

legislative decision to criminalize driving based upon the presence 

of a marihuana metabolite that may not itself cause impairment. 

Certainly, however, the presence of a marihuana metabolite in 

one’s system indicates that one has used marihuana, an illegal 

drug in Ohio. Furthermore, THC, the active ingredient in marihuana, 

leaves the body relatively quickly. Unlike the case with alcohol 
11

breathalyzer tests, which are commonly administered by police 

during roadside stops, it may take some time before police are able 

to transport and administer a blood or urine test to a suspected 

drugged driver. Accordingly, the legislative decision to include 

marihuana metabolites within the per se prohibition is not 

unreasonable.

State v. Whalen, 991 N.E.2d 738, 743-44 (Ohio Ct. App. 2013).

“In considering whether counsel’s failure to raise an issue amounts to 

ineffective assistance, we have stated that counsel is not required to be a ‘crystal 

gazer’ to predict changes in law.” State v. Effler, 769 N.W.2d 880, 897 (Iowa 

2009) (citing State v. Schoelerman, 315 N.W.2d 67, 72 (Iowa 1982)); see also 

State v. Liddell, 672 N.W.2d 805, 814 (Iowa 2003) (“Counsel need not be a 

crystal gazer; it is not necessary to know what the law will become in the future to 

provide effective assistance of counsel.”). Nor does counsel have a duty to raise 

and relitigate issues already decided. See Effler, 769 N.W.2d at 897. Thus, we 

conclude Davis failed to establish his trial counsel breached an essential duty 

owed Davis in failing to raise the claims presented in this appeal. See, e.g., 

State v. Smith, No. 07-0915, 2008 WL 4325945, at *2 (Iowa Ct. App. Sept. 17, 

2008) (holding counsel was not ineffective in failing to challenge instruction 

where the law was well settled).

We next address Davis’s challenge to the district court’s denial of his 

motion for mistrial. Davis contends the district court erred in refusing to grant a 

mistrial after Deputy Quinn testified Davis told her he had used crack. Our court 

reviews the denial of a motion for mistrial for an abuse of discretion. State v. 

Jackson, 587 N.W.2d 764, 766 (Iowa 1998); State v. Keys, 535 N.W.2d 783, 786 
12

(Iowa Ct. App. 1995). The district court has broad discretion when ruling on a 

motion for a mistrial. Keys, 535 N.W.2d at 785. 

At trial, defense counsel objected to the introduction of evidence regarding 

Davis’s past drug use and moved for a mistrial. The district court stated “[t]he 

reference to prior drug use is improper, but I don’t feel that rises to the level of 

prejudice that would warrant a mistrial at this point and so the question is how do 

we deal with it.” The district court admonished the jurors to disregard the 

testimony:

You have—if you’ve been listening to the deputy’s testimony, there 

was some reference to a drug called crack and it has been 

determined that if there was any reference to the defendant’s use of 

that drug, it was not admitted that he used it recently. It is—you’re 

admonished that you should disregard any reference to the use of 

crack because there is no evidence and there will be no evidence 

to suggest that he was using it at any time near the time of this 

incident and, therefore, he could not have been impaired by that 

drug, so you are to ignore the reference to that drug.

A “reversal may only be predicated on the proposition that the matter 

forbidden by the ruling was so prejudicial that its effect upon the jury could not be 

erased by the trial court's admonition.” Jackson, 587 N.W.2d at 766. The court 

will consider evidence unfairly prejudicial when it “appeals to the jury's 

sympathies, arouses its sense of horror, provokes its instinct to punish, or 

triggers other mainsprings of human action that may cause the jury to base its 

decision on something other than the established propositions in the case.” 

State v. White, 668 N.W.2d 850, 854 (Iowa 2003). “Only in extreme instances 

where it is manifest that the prejudicial effect of the evidence on the jury 

remained, despite its exclusion, and influenced the jury is the defendant denied a 

fair trial and entitled to a [mistrial].” Jackson, 587 N.W.2d at 766. 
13

This is not one of the rare cases in which the district court abused its 

discretion in denying the motion for mistrial. Here, the deputy’s testimony was 

isolated, defense counsel quickly objected, and the district court struck the 

testimony and gave a strong admonition to the jury. “Generally, an admonition to 

the jury to disregard inadmissible testimony is sufficient to cure any prejudice.” 

State v. Brotherton, 384 N.W.2d 375, 381 (Iowa 1986). “Prompt withdrawal of 

testimony that is improper with such an admonition to the jury as was given here 

leaves no ground for complaint except in extreme instances where it is manifest 

its prejudicial effect remained and influenced the verdict despite its exclusion.” 

State v. Johnson, 183 N.W.2d 194, 198 (Iowa 1971). “[W]hen improper evidence 

has been promptly stricken and the jury admonished to disregard it, there has 

been no erroneous ruling by the district court.” Jackson, 587 N.W.2d at 766. 

Finally, the defendant claims his defense counsel was ineffective in failing 

to file a motion in limine to exclude evidence of his past crack use. The evidence 

was excluded on trial counsel’s objection. The claim is without merit.

AFFIRMED.