IN THE COURT OF APPEALS OF IOWA

No. 18-1142

Filed October 9, 2019

STATE OF IOWA,

Plaintiff-Appellee,

vs.

MONTREAL SHORTER,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Cynthia M. Moisan, 

District Associate Judge.

Montreal Shorter appeals following conviction for possessing or carrying a 

dangerous weapon while under the influence. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant 

Appellate Defender, for appellant.

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

General, for appellee.

Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
2

BOWER, Judge.

Montreal Shorter appeals his conviction for possessing or carrying a 

dangerous weapon while under the influence. We reject Shorter’s claims of 

allegedly faulty jury instructions and ineffective assistance of counsel and affirm 

his conviction. 

I. Background Facts.

On December 23, 2017, at about two in the morning, Shorter and a friend 

tried to enter the Minx Show Palace. Earlier that night they had been drinking. 

Minx’s two bouncers, Anthony Weber and Matthew Carroll, asked Shorter if he had 

any knives or guns on him. Shorter told them he “kept his shit in the car.” The 

bouncers denied Shorter and his friend entrance for failing to meet the dress code. 

Shorter’s friend confronted Weber and was pepper sprayed. Some of the spray 

hit Shorter. 

Meanwhile, Carroll called the Polk County Sheriff to report the incident. 

Shorter declared he was “going to get his gun,” then walked to his driver’s door, 

opened it, and reached for something toward the center console. Both bouncers 

saw something in Shorter’s hand, though they could not identify it.

As Shorter leaned back out of his car, police approached the Minx parking 

lot with sirens blaring and lights flashing. Shorter set whatever he was holding

down and walked away from the car. Police spoke with Shorter, who repeatedly 

denied having had anything to drink even though he was slurring his words and 

staggering. A later preliminary breath test (“PBT”) indicated Shorter’s blood

alcohol level was 0.113. 
3

While deputies spoke with Shorter, Deputy Bradley Hook looked in the open 

driver’s door of Shorter’s car. The deputy saw a pistol on top of the center console. 

When told he “can’t carry a gun while drunk,” Shorter insisted he was not drunk. 

He did not deny carrying his pistol.

At trial, Shorter told the jury he never opened his car door after being pepper 

sprayed at Minx. He denied touching his pistol when intoxicated, though he 

admitted being drunk and having his pistol in his car. Shorter told the jury he 

always kept his pistol in the center console, but acknowledged that if it was found 

on top of the center console, that is where he left it. 

Shorter’s trial counsel objected to the proposed jury instruction of the 

elements of the offense of carrying a dangerous weapon while under the 

influence,

1 asserting it incorrectly included the word “possesses.” He also objected

to another instruction concerning “possession.”2 The court overruled his 

objections.

 

1

Instruction 11 provides:

The State must prove all of the following elements of Possession or 

Carrying of Dangerous Weapon While Intoxicated:

On or about the 23rd day of December 2017, the Defendant was 

Intoxicated as defined in Jury Instruction No. 12; and the Defendant does 

any of the following:

(a) Possesses or carries a dangerous weapon on or about 

his person as defined in instructions no. 13; or

(b) Possesses or carries a dangerous weapon within the 

person’s immediate access or reach while in a vehicle.

If the State has proved all of the elements, the defendant is guilty 

of Possession or Carrying a Dangerous Weapon While Intoxicated. If the 

State has failed to prove any one of the elements, the defendant is not 

guilty.

Instruction 15 provided: “As used in instruction no. 11, to carry a dangerous 

weapon means to support and move it from one place to another.”

2 As proposed by the trial court, instructions 16 and 17 defined “possession.” However, 

Shorter had no objection to instruction 16 as modified (“To have immediate access to a 

firearm means to have actual possession of the firearm on or around one’s person. To 

have a dangerous weapon within one’s immediate reach means to have the firearm in 
4

The jury convicted Shorter as charged. He now appeals, contending the 

court erred by instructing the jury as to the elements of the offense. He also asserts 

counsel’s performance was constitutionally deficient for failing to object to the jury 

instruction that prior statements made by the defendant may be considered “as if 

they had been made at this trial.”

3

II. Scope and Standard of Review.

We review challenges to the jury instructions for correction of errors at law. 

State v. Hanes, 790 N.W.2d 545, 548 (Iowa 2010). We must decide “whether the 

 

close proximity so that the person can reach for it or claim dominion or control over it. In 

order to prove that the defendant has possession or control of a firearm, the State must 

prove that the defendant had knowledge of its existence and its general location.”). 

Instruction 17 reads:

The law recognizes several kinds of possession. A person may 

have actual possession or constructive possession. A person may have 

sole or joint possession. A person who has direct physical control over a 

thing on his person is in actual possession of it.

A person who, although not in actual possession, has both the 

power and the intention at a given time to exercise dominion or control over 

a thing, either directly or through another person or persons, is in

constructive possession of it. A person’s mere presence at a place where 

a thing is found or proximity to the thing is not enough to support a 

conclusion that the person possessed the thing. 

If one person alone has actual or constructive possession of a thing, 

possession is sole. If two or more persons share actual or constructive 

possession of a thing, possession is joint.

Whenever the word “possession” has been used in these 

instructions, it includes actual as well as constructive possession and sole 

as well as joint possession.

3

Instruction 18 reads in full:

Evidence has been offered to show that the defendant made 

statements at an earlier time and place.

If you find any of the statements were made, then you may consider 

them as part of the evidence, just as if they had been made at this trial.

You may also use these statements to help you decide if you 

believe the defendant. You may disregard all or any part of the defendant's 

testimony if you find the statements were made and were inconsistent with 

the defendant's testimony given at trial, but you are not required to do so.

Do not disregard the defendant’s testimony if other evidence you believe 

supports it or you believe it for any other reason.

(Emphasis added.)
5

challenged instruction accurately states the law and is supported by substantial 

evidence.” Id.

We review de novo claims of ineffective assistance of counsel. See State 

v. Harrison, 914 N.W.2d 178, 188 (Iowa 2018). “Ineffective-assistance-of-counsel 

claims require a showing by a preponderance of the evidence both that counsel 

failed an essential duty and that the failure resulted in prejudice.” Id. (quoting State 

v. Schlitter, 881 N.W.2d 380, 388 (Iowa 2016)). The defendant must show both 

prongs of this test have been met. Id. at 206.

III. Discussion.

Shorter asserts the district court erred in overruling his objections to 

instructions including and defining the terms “possesses” and “possession,” 

arguing the challenged language improperly authorized the jury to convict based

on “possession” rather than “carrying” a dangerous weapon. 

The pertinent statute, Iowa Code section 724.4C (2017), provides in 

pertinent part: “[A] person commits a serious misdemeanor if the person is

intoxicated . . . and the person does any of the following: (a) Carries a dangerous 

weapon on or about the person. (b) Carries a dangerous weapon within the

person’s immediate access or reach while in a vehicle.”

4

 There is no statutory 

definition of “carry” in chapter 724. State v. Thompson, No. 12-2314, 2013 WL

6686624, at *3 (Iowa Ct. App. Dec. 18, 2013) (noting the legislature did not define 

“carried” in Iowa Code chapter 724); State v. Neuzil, No. 00-1956, 2001 WL 

1659114, at *2 (Iowa Ct. App. Dec. 28, 2001). “In interpreting undefined statutory 

 

4 The statutory exceptions of section 724.4C(2) are not applicable. The term possession 

appears in the title of the section and in paragraph “2.” 
6

language, we . . . give words their common and ordinary meaning.” Thompson, 

2013 WL 6686624, at *3. “As sources for the common and ordinary meaning of 

words, we consult prior judicial interpretations and dictionary definitions.” Id. 

In Thompson, the defendant was charged with carrying and transporting

weapons, in violation of Iowa Code section 724.4(1).5 For purposes of that 

statutory provision, we noted the United States Supreme Court defined “carry” as 

“implying ‘personal agency and some degree of possession.’” Id. (quoting 

Muscarello v. United States, 524 U.S. 125, 134–35 (1988)); accord Neuzil, 2001 

WL 1659114, at *2. We are not convinced the court erred in including the definition 

of possession.

In any event, instruction 15 stated: “As used in instruction no. 11, to carry a 

dangerous weapon means to support and move it from one place to another.” The 

evidence showed that after Shorter’s friend was pepper sprayed, Shorter told the 

bouncers “he was going to get his gun.” Shorter then walked to the driver’s side 

door of his car, opened it, and deliberately reached toward the center console for

something. Both bouncers saw Shorter had something in his hand but could not 

tell what. And they both saw him return the item as police approached with sirens 

and lights on. Shorter then walked away from his car. And, as officers spoke with

Shorter, Deputy Hook looked through the open driver’s door of Shorter’s car and 

 

5 Section 724.4(1) provides:

Except as otherwise provided in this section, a person who goes 

armed with a dangerous weapon concealed on or about the person, or who, 

within the limits of any city, goes armed with a pistol or revolver, or any 

loaded firearm of any kind, whether concealed or not, or who knowingly 

carries or transports in a vehicle a pistol or revolver, commits an 

aggravated misdemeanor.

(Emphasis added.)
7

saw a pistol sitting on the center console “right where [Shorter] was reaching for” 

it. In response to being told he “can’t carry a gun while drunk,” Shorter denied that 

he was drunk but not that he had handled his pistol. At trial, however, Shorter 

admitted being drunk. There is strong evidence Shorter held and moved a 

dangerous weapon while intoxicated, we conclude Shorter was not prejudiced by 

the jury instructions given. Because it does not “sufficiently appear that the rights 

of [Shorter] have been injuriously affected by the [alleged] error or that he has 

suffered a miscarriage of justice,” any error was harmless. See Hanes, 790 

N.W.2d at 550 (citation omitted).

Shorter also contends his defense counsel was ineffective for failing to 

object to the instruction concerning prior statements made by a defendant. This 

court has rejected similar claims on a number of occasions. See, e.g., State v. 

South, No. 18-0356, 2019 WL 1294101, at *2 (Iowa Ct. App. Mar. 20, 2019); State 

v. Moore, No. 17-1822, 2019 WL 478236, at *2 (Iowa Ct. App. Feb. 6, 2019), aff’d 

on this ground, 2019 WL 4228986 , at *1 (Sept. 6, 2019) (per curiam) (“[W]e choose 

to let the court of appeals decision stand as our final decision regarding the 

ineffective-assistance-of-counsel claims.”); State v. Lopez-Aguilar, No. 17-0914, 

2018 WL 3913672, at *8 (Iowa Ct. App. Aug. 15, 2018) (“This court has repeatedly 

found the challenged instruction to be a correct statement of the law and 

repeatedly rejected the same argument.”), further review denied (Oct. 8, 2018);

State v. Garcia, No. 17-0111, 2018 WL 3913668, at *4 (Iowa Ct. App. Aug. 15, 

2018) (finding counsel did not breach an essential duty in failing to object to the 

instruction), further review denied (Nov. 15, 2018); State v. Yenger, No. 17-0592, 

2018 WL 3060251, at *4–5 (Iowa Ct. App. June 20, 2018), further review denied
8

(Sep. 13, 2018); State v. Hayes, No. 17-0563, 2018 WL 2722782, at *5 (Iowa Ct. 

App. June 6, 2018) (“This court recently held this instruction correctly states the 

law and giving the instruction was not in error.” (footnote omitted)), further review 

denied (Aug. 3, 2018). We do not revisit the issue. Because the instruction is a 

correct statement of the law, trial counsel had no duty to object to it. See State v. 

Fountain, 786 N.W.2d 260, 263 (Iowa 2010) (“Counsel has no duty to raise an 

issue that has no merit.”). Shorter’s ineffective-assistance claim fails. We affirm.

AFFIRMED.