IN THE COURT OF APPEALS OF IOWA

No. 14-0775

Filed April 8, 2015

STATE OF IOWA,

Plaintiff-Appellee,

vs.

DARRYL CURTIS WALTON,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Clinton County, Joel W. Barrows, 

Judge. 

A defendant appeals his conviction of possession with intent to deliver 

marijuana and violating Iowa’s drug tax stamp law. AFFIRMED.

Courtney T. Wilson of Gomez & May, L.L.P., Davenport, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney 

General, Mike Wolf, County Attorney, and Amanda M. Myers, Assistant County 

Attorney, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2

MULLINS, J.

Curtis Walton appeals his convictions for possession with intent to deliver 

marijuana and violating Iowa’s drug tax stamp law. Walton asserts the district 

court abused its discretion in denying his motion for mistrial made after the State

published to the jury a booking sheet that identified the severity of the crime as a 

felony. He contends insufficient evidence exists to support his possession of 

marijuana at his residence, intent to deliver marijuana on his person, and drug 

tax stamp law violations. Finally, he asserts the district court abused its 

discretion in denying his motion for new trial based on newly discovered 

evidence. We affirm the rulings of the district court. 

I. Background Facts & Proceedings

On the afternoon of December 13, 2013, Corporal Galusha of the Clinton 

Police Department was dispatched to the residence shared by Curtis Walton and 

Gwendolyn Brown. Brown led Galusha into the apartment’s bedroom, opened a 

dresser drawer, and pulled out a large baggie she suspected contained 

marijuana. Brown subsequently consented to a search of the bedroom, which 

produced four empty plastic baggies and a piece of paper containing phone 

numbers. 

The large baggie contained two smaller sandwich bags each containing

twenty individually packaged bindles1of a green leafy substance. All forty

baggies were cut, tied, and packaged in the same manner. Brown told officers 

 

1

“Bindle” is a slang term for a folded paper which contains illegal drugs. Definition of 

Bindle, The Online Slang Dictionary, http://onlineslangdictionary.com/meaning-definitionof/bindle (last edited October 14, 2011).
3

their contents belonged to Walton, her boyfriend, who had just left the residence. 

Sergeant Wehde affected a traffic stop and apprehended Walton soon thereafter.

Wehde arrested Walton, and a subsequent search of his vehicle revealed 

two cellular phones. At the jail, Walton surrendered $493.20 in cash he had 

been carrying. The cash was comprised of thirteen $20 dollar bills, fourteen $10 

dollar bills, seventeen $5 dollar bills, eight $1 dollar bills, and two dimes. A strip 

search revealed Walton was carrying eight similarly packaged bindles of a green 

leafy substance in a larger baggie in his boxers. He told deputies he “bought 

weed from a friend.”

The evidence was subsequently sent to the Division of Criminal 

Investigation Criminalistics Laboratory. Technicians confirmed the green leafy 

substance in packages from the residence and the packages seized from Walton 

at the jail was marijuana. The total net weight of the marijuana seized from 

Walton’s residence and person was 53.11 grams and 10.79 grams, respectively. 

Technicians lifted two fingerprints from the baggies found in the dresser; neither 

belonged to Walton but one belonged to Brown. Detective Adney searched 

Walton’s phones and found nothing of evidentiary value.

Walton was charged with possession with intent to deliver marijuana, in 

violation of Iowa Code section 124.401(1) (2013), and failing to affix a drug 

stamp, in violation of Iowa Code sections 453B.3 and 453B.12. Walton pled not 

guilty and proceeded to trial, where the classification of Walton’s charge as a 

felony was briefly projected on an overhead; the court denied his resultant motion 

for mistrial.
4

Walton was convicted of both offenses on March 12, 2014, and he filed a 

motion for new trial on April 30, 2014. His motion was supported by the affidavit 

of Brown, who asserted her cousin, Erick Dalton, phoned her on or about March 

18, 2014, and confessed to owning the marijuana at her property. The court 

denied Walton’s motion, and he now appeals. 

II. Motion for Mistrial

We do not set aside a trial court’s denial of a motion for mistrial except 

upon a clear showing of abuse of discretion. State v. Staker, 220 N.W.2d 613, 

617 (Iowa 1974). “We . . . allow trial courts broad discretion in determining 

whether to grant a mistrial. Such discretion is a recognition of the trial court’s 

better position to appraise the situation in the context of the full trial.” Fry v. 

Blauvelt, 818 N.W.2d 123, 132 (Iowa 2012) (citation omitted). 

The bar for finding such an abuse of discretion is high. The facts must 

“present an ‘extreme instance’ in which ‘manifest’ prejudice provides sufficient 

grounds for a new trial.” Id. (citation omitted). “Evidence is unfairly prejudicial if 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).

The facts of this case do not satisfy that bar. Walton asserts prejudice 

occurred when the State projected Walton’s booking sheet during trial; the sheet 

indicated the classification of Walton’s charge was a felony. He argues this 

publication made the jury more likely to convict him for thinking felons are bad 
5

people, commit bad acts, and should be punished. The prosecutor asserts the 

booking sheet was displayed for less than five minutes, he is “not entirely sure 

that [the ’severity‘ line] was even published to the jury,” and Walton’s denial of a 

curative instruction is an implicit concession the jurors did not see the severity 

line. 

In State v. Wade, the judge who presided over defendant’s previous trial 

testified the defendant was sentenced to ten years imprisonment for conviction of 

possession of cocaine with intent to deliver. 467 N.W.2d 283, 285 (Iowa 1991).

The Iowa Supreme Court, in finding the trial court did not abuse its discretion in 

denying the motion for mistrial, held that “[i]t should come as no great surprise to 

a jury that a person convicted of possession of cocaine with intent to deliver 

would be sentenced to prison.” Id. 

Because the result of the former judge’s testimony on the jury in Wade is 

likely more prejudicial than the effect of the booking sheet here, we do not find 

the court’s denial to be so “palpably and grossly violative of fact and logic” as to 

warrant an abuse of discretion. State v. Brewer, 247 N.W.2d 205, 211 (Iowa 

1976). Our holding is bolstered by the fact that, as the trial court pointed out, the 

jury was aware Walton was charged with a “more serious” offense than “simple 

possession,” and thus, their discovery that Walton’s charges were classified as a 

felony was not so shocking to warrant “manifest prejudice.”

III. Sufficiency of Evidence 

Sufficiency of evidence claims are reviewed for a correction of errors at 

law. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012) (citation omitted). Upon 
6

review, we consider all record evidence viewed “in the light most favorable to the 

State, including all reasonable inferences that may be fairly drawn from the 

evidence.” State v. Keopasaeuth, 645 N.W.2d 637, 640 (Iowa 2002) (citation 

omitted). The verdict should be upheld if “substantial record evidence supports 

it.” State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006) (citation omitted).

“Substantial evidence means such evidence as could convince a rational trier of 

fact that the defendant is guilty of the crime charged beyond a reasonable doubt.” 

State v. LeGear, 346 N.W.2d 21, 23 (Iowa 1984) (citation omitted).

Whether Walton’s conviction of possession of marijuana is supported by 

substantial evidence necessarily depends upon possession. Possession can be 

either actual, which occurs when contraband is found on a person, or 

constructive, which occurs when the “defendant had knowledge of the controlled 

substance as well as the authority or right to control it.” See State v. Kern, 831 

N.W.2d 149, 161 (Iowa 2013). 

Walton asserts there is insufficient evidence he exercised dominion and 

control over the marijuana at his residence, that without that evidence there is 

insufficient evidence of his tax stamp violation, and there is insufficient evidence 

of his intent to deliver the marijuana on his person. 

A. Evidence of possession of marijuana at residence.

Iowa Code section 124.401(1) makes it unlawful for any person “to 

manufacture, deliver, or possess with the intent to manufacture or deliver, a 

controlled substance,” except as specifically authorized by statute. As the 

marijuana seized from the residence was not on Walton’s person, he was not in 
7

actual possession of it. See id. The State nevertheless asserts Walton 

constructively possessed this marijuana. Knowledge of a substance’s presence 

and ability to maintain control over it may be inferred in cases of sole ownership, 

but where—as here—the residence is jointly occupied, the State must 

demonstrate additional proof, the nature of which includes:

(1) incriminating statements made by a person; (2) incriminating 

actions of the person upon the police’s discovery of a controlled 

substance among or near the person’s personal belongings; (3) the 

person’s fingerprints on the packages containing the controlled 

substance; and (4) any other circumstances linking the person to 

the controlled substance.

Id. (citation omitted). “These factors are not exclusive, however, and merely act 

as a guide.” State v. Thomas, 847 N.W.2d 438, 443 (Iowa 2014) (citations

omitted). 

The State asserts sufficient evidence exists that Walton constructively 

possessed the marijuana in the drawer as only Walton and Brown occupied the 

residence, it is unlikely Brown possessed the marijuana because she called the 

police and directed them to it, and the marijuana was packaged in a “consistent if 

not identical” manner to the marijuana on Walton’s person. Walton asserts the 

drawer from which the marijuana was seized was not his exclusively, as 

evidenced by the female garments stored within it, and the marijuana packages 

contained only Brown’s fingerprints. 

Corporal Galusha testified the marijuana at the residence was packaged 

by putting the marijuana in the corner of a sandwich bag, cutting it off, and tying 

the bag in a knot. These “corner baggies,” as Detective Adney referred to them, 

were packaged inside larger bags. Clinton County Deputy Sheriff Watts, who 
8

participated in conducting the strip search at the jail, testified the eight “mini” 

marijuana bags seized from Walton’s person were “twisted and tied up pretty 

well” and contained within a larger package. This “consistent if not identical” 

packaging of the marijuana found on Walton’s person and in the drawer 

constituted substantial evidence of a possessive link connecting Walton to both 

packages. Further, Brown had called the police and brought them to the 

marijuana, actions by which a reasonable jury could find meant the marijuana 

was not Brown’s, but Walton’s. See, e.g., id. (finding that while two people other 

than defendant had access to bedroom, their cooperation with police could lead 

jury to conclude drugs were defendants). 

Finally, we find neither the presence of Brown’s fingerprints nor her 

garments negated the substantial evidence that the marijuana was Walton’s. 

Corporal Galusha testified that Brown led her to the bedroom, “opened a dresser 

drawer, and pulled out a large baggie.” A reasonable jury could find the 

presence of Brown’s fingerprints was explained by these actions. Additionally, 

Brown and Walton shared a one-bedroom apartment that Detective Adney 

testified contained both male and female garments, which could diminish the 

significance of the presence of female clothes in the dresser to a reasonable jury. 

We accordingly hold that, “[c]onsidering the totality of the evidence in this 

case, it is sufficient to raise a fair inference of guilt and generates more than 

suspicion, speculation, or conjecture.” Id. at 447 (citation omitted). There was 

sufficient evidence from which a jury could find beyond a reasonable doubt that 

Walton constructively possessed the marijuana in the drawer. 
9

B. Evidence of possession of marijuana on his person with the intent to 

deliver it.

Possession with intent to distribute a controlled substance is established 

by proof that the defendant knowingly possessed the drug with the intent to 

deliver it to another. See Iowa Code § 124.401(1). Walton asserts there was 

insufficient evidence he intended to distribute the marijuana on his person 

because purchasers of marijuana buy more than one individually wrapped bag at 

a time, he possessed less than the general purchase amount, and nothing 

incriminating was found on his phones. The State asserts error was not 

preserved on this issue, but that sufficient evidence did exist as the marijuana on 

Walton’s person was packaged for street level distribution, the quantity exceeded 

that for personal use, Walton did not have drug paraphernalia to facilitate 

personal use, and the denominations of cash found on Walton’s person 

suggested distribution. We will assume without deciding error was preserved, 

and reach the issue. 

“Because it is difficult to prove intent by direct evidence, proof of intent 

usually consists of circumstantial evidence and the inferences that can be drawn 

from that evidence.” State v. Adams, 554 N.W.2d 686, 692 (Iowa 1996) (citation 

omitted). Intent can be inferred from “the amount of the controlled substance . . . 

[and] the manner of packaging the drugs.” Id. (citations omitted). In addition, 

“the presence of a large sum of unexplained cash in connection with other 

evidence of drug trading is probative of the previous occurrence of drug 
10

transactions,” and thus, intent to distribute. United States v. Brett, 872 F.2d 

1365, 1370 (8th Cir. 1989) (citation omitted). 

The facts of this case are similar to Adams. The defendant in that case 

possessed 4.69 grams of crack cocaine—Walton possessed 10.79 grams of 

marijuana—packaged in a plastic sandwich bag. Adams, 554 N.W.2d at 692.

He was arrested with $464.00 in cash on his person—Walton possessed 

$493.20 in small denominations—which, coupled with the cocaine packaging, led 

police officers to believe the defendant was a drug dealer at the street level. Id. 

The Iowa Supreme Court resolved the discrepancy between the large amount of 

cash but little cocaine by holding that “[a]lthough one might characterize the 

quantity of drugs in this case as relatively small, when combined with the cash 

found on Adams, a trier of fact could reasonably infer Adams had already sold a 

quantity of drugs, thereby explaining both the small amount of drugs and the 

large amount of cash.” Id. The court found substantial evidence to support 

defendant’s possession with intent to deliver cocaine conviction. Id. 

In addition to large amount of marijuana in Walton’s possession when

apprehended—which Detective Adney testified was inconsistent with personal 

use—we find it significant that the marijuana Walton possessed was in the form 

of eight individually wrapped “corner baggies.” Detective Adney testified this 

packaging was inconsistent with individual use and was consistent with 

distribution, especially given the fact that no drug paraphernalia was discovered 

on Walton and the cash he possessed was in the form of small denominations, 
11

consistent with the street sale of “dimes” and “dubs.”2 We find substantial 

evidence existed here for a reasonable jury to find Walton possessed the 

marijuana on his person with the intent to distribute it.

C. Evidence of Drug Tax Stamp violation.

“[A] dealer distributing, offering to sell, or possessing taxable substances 

without affixing the appropriate stamps, labels, or other official indicia is guilty of 

a class “D” felony.” Iowa Code § 453B.12. An accused must be in possession of

42.5 grams of marijuana to be convicted of a tax stamp violation. Id. 

§ 453B.1(3)(a)(2). 

Walton only challenges one aspect of his tax stamp violation on appeal, 

which is that there is insufficient evidence supporting this charge as there is 

insufficient evidence he possessed the marijuana at his residence. As we found 

there was sufficient evidence Walton constructively possessed the marijuana at 

the residence, we find there is sufficient evidence for his tax stamp conviction as 

well. 

IV. Motion for a New Trial 

Our standard of review in this case depends upon the grounds asserted 

for the new trial and the grounds ruled upon by the court. Ladeburg v. Ray, 508 

N.W.2d 694, 696 (Iowa 1993). As the motion for a new trial and ruling are based 

on discretionary grounds and not error of law, the trial court’s denial of Walton’s 

motion is reviewed for abuse of discretion. Id. “[B]road discretion is particularly 

appropriate” in reviewing the trial court’s ruling on a motion for new trial when the 

 

2 Dimes are ten dollar amounts of marijuana and dubs are twenty dollar amounts of 

marijuana.
12

alleged basis is newly-discovered evidence. State v. Miles, 490 N.W.2d 798, 799 

(Iowa 1992). 

A motion for new trial based on newly-discovered evidence should be 

granted if “the evidence in question (1) was discovered after the verdict, (2) could 

not have been discovered earlier in the exercise of due diligence, (3) is material 

to the issues in the case and not merely cumulative, and (4) probably would have 

changed the result of the trial.” State v. Smith, 573 N.W.2d 14, 21 (Iowa 1997) 

(citation omitted); see also Iowa R. Civ. P. 1.1004(7). 

Walton contends he is entitled to a new trial on the grounds that Erick 

Dalton, Brown’s cousin, admitted six days after the trial that the marijuana in the 

drawer was his property. No affidavit was produced on Erick Dalton’s behalf nor 

did he testify at the sentencing hearing when Walton’s motion was considered. 

This evidence was presented to the court via Brown’s testimony and affidavit. 

At the hearing, the trial court questioned the likelihood that the new 

evidence would change the outcome of the trial and noted that it “seriously 

questions the credibility of Ms. Brown’s testimony.” The court denied the motion, 

however, on the sole ground that an affidavit that alleges newly discovered 

evidence which merely recites hearsay is insufficient to support a motion for new 

trial, per State v. Feddersen, 230 N.W.2d 510, 516 (Iowa 1975) (finding that 

since defense counsel’s affidavits recited hearsay, they were insufficient to 

support a new trial motion on ground of newly discovered evidence).
13

We agree, and as we find no hearsay exception by which Brown’s affidavit 

could withstand the Iowa Supreme Court’s ruling in Feddersen, we find no abuse 

of discretion in the trial court’s denial of Walton’s motion. 

V. Conclusion

We find the publication of the classification of Walton’s charges was not 

manifestly prejudicial, and the trial court did not abuse its discretion in denying 

Walton’s motion for mistrial on that ground. We further find sufficient evidence in 

the record to support all of Walton’s convictions. Finally, we conclude the trial 

court did not abuse its discretion in denying Walton’s motion for a new trial based 

on newly discovered evidence as the motion was supported only by inadmissible 

hearsay. We affirm Walton’s convictions.

AFFIRMED.