State v. Konvalinka

• Decision Date: 23 May 2012
• Docket Number: No. 11–0777.,11–0777.
• Citation: 819 N.W.2d 426
• Parties: STATE of Iowa, Plaintiff–Appellee, v. Kevin Joseph KONVALINKA, Defendant–Appellant.
• Court: Iowa Court of Appeals

819 N.W.2d 426

STATE of Iowa, Plaintiff–Appellee,

v.Kevin Joseph KONVALINKA, Defendant–Appellant.

No. 11–0777.

Court of Appeals of Iowa.

May 23, 2012.

Appeal from the Iowa District Court for Webster County, Joel E. Swanson (trial) and Kurt L. Wilke (sentencing), Judges.

Kevin Konvalinka appeals the judgment and sentence entered upon jury verdicts finding him guilty of possession of methamphetamine enhanced as a habitual offender, felony eluding enhanced as a habitual offender, operating while intoxicated, and driving while license suspended. CONVICTIONS AFFIRMED; SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND REMANDED FOR RESENTENCING.

Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney General, Ricki N. Osborn, County Attorney, and Cori Kuhn Coleman and Jordan Brackey, Assistant County Attorneys, for appellee.

Considered by VAITHESWARAN, P.J., and TABOR and MULLINS, JJ.

MULLINS, J.

Kevin Konvalinka appeals the judgment and sentence entered upon jury verdicts finding him guilty of possession of methamphetamine enhanced as a habitual offender, felony eluding enhanced as a habitual offender, operating while intoxicated, and driving while license suspended. SeeIowa Code §§ 124.401(5), 321.279(3)(b), 321 J.2(1), 902.8 (2009). Konvalinka challenges the sufficiency of the evidence supporting his possession and eluding convictions. He further asserts his trial counsel provided ineffective assistance by failing to request a jury instruction on “possession” and by failing to suppress, redact, or object to portions of a video of him at the police station after he was arrested. Konvalinka also argues the district court erred in certain sentencing aspects. For the reasons stated herein, we affirm Konvalinka's convictions, preserve the claim regarding the admission of the video for possible postconviction relief proceedings, and affirm and vacate parts of Konvalinka's sentence and remand for resentencing.

I. Background Facts and Proceedings.

Based upon the evidence presented at trial, the jury could have found the following: On August 20, 2010, the police dispatch broadcasted a report that a blue minivan was driving erratically heading westbound on County Road D18/10th Avenue near Fort Dodge. Deputy Tony Walter of the Webster County Sheriff's Office first saw the vehicle as it approached a stop sign at the intersection of 10th Avenue and North 32nd Street. Deputy Walter observed the driver, later identified as Konvalinka, reach over and put on his seat belt. Deputy Walter, who was driving a marked police vehicle, activated his lights and siren to initiate a traffic stop.

Konvalinka drove away at a high rate of speed, and Deputy Walter pursued. Deputy Walter testified that he reached seventy miles per hour as he sped to catch up to Konvalinka. Deputy Walter stated that at this speed, he “was gaining on him a little bit” and thus estimated Konvalinka to be travelling at approximately sixty miles per hour. The speed limit in the area was twenty-five miles per hour. Deputy Walter testified that he observed Konvalinka pass vehicles and swerve in and out of his lane, but did not see Konvalinka throw anything out of the vehicle.

Captain Robert Thode of the Fort Dodge Police Department was traveling eastbound on 10th Avenue in response to the dispatch when he was advised that the vehicle had taken off. When Captain Thode was near Knollcrest Drive, he observed Konvalinka's vehicle crest the hill in front of him at a high rate of speed. Captain Thode testified that he estimated Konvalinka's speed to be about sixty miles per hour. With lights and sirens activated, Captain Thode used his marked patrol car to partially block the westbound lane. Konvalinka swerved onto the shoulder to pass Captain Thode's vehicle and proceed west on 10th Avenue. Captain Thode also did not observe Konvalinka throw anything from the vehicle. After Konvalinka passed Captain Thode, he began to slow his vehicle.

Officer Joelyn Johnson of the Fort Dodge Police Department was also responding to the call, traveling eastbound on 10th Avenue. After passing North 29th Street, Officer Johnson parked her vehicle in the eastbound lane, with lights activated. Officer Johnson observed the blue minivan as it approached, and estimated Konvalinka to be travelling “at least ten miles per hour over the speed limit.”

Konvalinka stopped his vehicle shortly after passing Officer Johnson's vehicle just before reaching 29th Street. Because of the relatively short duration of the chase and the other vehicles on the road, Deputy Walter testified that he was unable to “pace” Konvalinka's vehicle or verify speed with radar. Captain Thode was also unable to verify speed with radar because his vehicle was not equipped with it. Deputy Walter, Captain Thode, and Officer Johnson all testified that they have never written a speeding ticket on visual approximation nor did they write Konvalinka a ticket for speeding.

After stopping, Konvalinka was ordered out of the vehicle at gun point. Konvalinka complied and was arrested. Deputy Walter testified that Konvalinka was “very anxious and twitchy” and had very erratic behaviors and was moving around. Captain Thode also testified that Konvalinka was “a little jittery.” Based on these observations, Deputy Walter and Captain Thode believed Konvalinka was under the influence of a narcotic. During an inventory search of Konvalinka's vehicle, police discovered a glass methamphetamine pipe and a marijuana pipe in a backpack in the rear cargo area of the van.

As Konvalinka was being placed under arrest, Brenda Goodner stopped her vehicle and informed Officer Johnson that she observed Konvalinka throw something out the window of his vehicle as he passed her. Goodner testified that she had been driving west on 10th Avenue near 31 st Street when Konvalinka passed her on the left, driving erratically and at a high rate of speed. Goodner testified that she observed Konvalinka “throw out numerous baggies and then an object I couldn't identify.” Goodner testified that the item was small, white, and about the size of a deck of cards.

Officer Johnson accompanied Goodner back to the area where Goodner believed the items were discarded. Between North 31st Place and the entrance for a school parking lot, Officer Johnson discovered a cigarette box that contained a plastic bag with 0.17 grams of methamphetamine. Officer Johnson testified that the cigarette box was “in good condition, it wasn't crushed, it didn't appear to be weathered, [and] it didn't appear to have spent any long duration outside.” In addition, Goodner returned to this area the next day and discovered a bag of marijuana along the side of the road. This bag was seized by Deputy Walter.

After she seized the methamphetamine, Officer Johnson returned to the scene of the stop, and transported Konvalinka to the Law Enforcement Center. A video of the events at the county jail was played for the jury without objection.

The video starts with Konvalinka making phone calls while seated in a booking room with his left hand handcuffed to the wall. When Konvalinka finishes his phone call, Officer Johnson reads him his Miranda rights. Konvalinka replies that he understands his rights and does not want to speak with her. Officer Johnson then reads Konvalinka an implied consent advisory. Konvalinka refuses to allow Officer Johnson to look into his eyes and questions why Officer Johnson is still speaking with him. Soon Deputy Walter enters the room and Officer Johnson informs him that Konvalinka was asserting his rights and refused to show her his eyes.

Eventually Deputy Michael Kenyon, a drug recognition expert, enters the booking room and attempts to engage Konvalinka in conversation. Deputy Kenyon asks Konvalinka what is going on, stating he just got there, so fill him in. Konvalinka responds by stating the other officers in the room could probably do a better job. Deputy Kenyon says he was asking Konvalinka to do it. Konvalinka responds that he did not wish to speak about it. Deputy Kenyon then states that if Konvalinka was not going to talk about it, then he was not going to get his side of the story. Konvalinka remains silent.

Deputy Kenyon proceeds to ask Konvalinka questions about whether he had eaten, drank alcohol or water, where he worked, when he last slept and for how long, and if he took any medications or had any medical issues. Konvalinka states that he does not want to answer any of the questions, and that he had already signed a paper stating he did not want to answer any questions. Deputy Kenyon insists he answer since his questions were “medical questions” related to his ability to go to jail. Konvalinka states, “fair enough,” and answers the questions.

Deputy Kenyon requests Konvalinka submit to a breath test and a urine test, and to perform a drug recognition evaluation. Konvalinka questions how he would be charged if he refused testing. Deputy Kenyon responds that he did not know since he had not looked at his criminal history. Konvalinka then explains that he had previously been arrested and charged with operating while intoxicated on two occasions. Deputy Kenyon informs Konvalinka that he was probably going to be charged with a third offense, and Konvalinka protests saying he had never been convicted. Konvalinka did not want to take any testing without knowing what he was going to be charged with. The officers eventually stated that this would be charged as a first offense. Konvalinka refuses all testing.

In addition to the video, Officer Johnson testified at trial that Konvalinka got a lot more fidgety, could not sit still, and messed with his hands and shorts a lot while at booking. Deputy Kenyon also observed that Konvalinka “couldn't keep still” and “was just fidgety.” Deputy Kenyon testified that Konvalinka's movements were consistent...