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 wea pon 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 wea pon 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, a t 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 b ouncers, Anthony Weber and Matthew Carroll, asked Shorter if he had
any knives or guns on him . S horter told them he “kept his shit in the car.” T he

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

Shorter’s friend conf ronted Weber and was pepper sprayed

. Some of the spray

hi t 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 wh atever 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 includ ed the word “possesses

. ” He also object ed

to an other 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 23r d 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 carr ies a dangerous weapon on or about his person as defined in instructions no. 13; or ( b ) Possesses or carries a danger ous 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 t o 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 p ossession of the firearm on or around one’ s person. To have a dangerous weapon within one ’ s immediate reach means to have the firearm in4

The jury con victed 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 201 0) . 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 believ e 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 c laims 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 o bjections to

instructio n s including and defining the term s “possesses” and “possession,”
arguing the chal lenged language improperly authorized the jury to convict based

on “possession” rather than “carrying” a d angerous weapon.

T he pertinent statute, Iowa Code section 724.4C (2017), pro vides 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

def inition of “ carr y ” in c hapter 724. S tate v. Thompson , No. 12

- 2314, 2013 WL
6686624, at *3 (Iowa Ct. App. Dec. 18, 2013) (noting t he 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). “I n 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 a nd 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 C ourt 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 defin ition
of possession.
In any event, i nstruction 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 tol d the bouncers “he was going to get his gun.” Shorter th en 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 wh at. And they both saw him return the item as police approached with sirens
and lights on. Shorter then walked away from his car. A nd, a s 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 conceale d 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 dr unk. T here is strong evidence Shorter held and moved a dangerous weapon while intoxicated , w e conclude Shorter was not prejudiced by
the jury instructions given. Because it does not “sufficiently appear that the rights of [Shorter] have been injuriously affect ed 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,

20 18 WL 3060251, at *4

– 5 (Iowa Ct. App. June 20, 2018), further review denied8

(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 th e 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.