IN THE COURT OF APPEALS OF IOWA
No. 14-0350 Filed September 10, 2015
STATE OF IOWA, Plaintiff-Appellee,
vs.
ALFRED ANTHONY GALLARDO, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom
(suppression motion), Rebecca Goodgame Ebinger (trial), Judge.
The defendant appeals his convictions for possession of a controlled
substance and failure to possess a tax stamp. REVERSED AND REMANDED.
Angela Campbell of Dickey & Campbell Law Firm, P.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Katie Fiala, Assistant Attorney
General, Louis S. Sloven, Student Legal Intern, John P. Sarcone, County
Attorney, and Joseph Crisp, Assistant County Attorney, for appellee.
Considered by Tabor, P.J., and Bower and McDonald, JJ. 2
PER CURIAM,
Alfred Gallardo appeals his convictions of possession of a controlled
substance, morphine, in violation of Iowa Code section 124.401(5) (2013), and
failure to possess a tax stamp, in violation of Iowa Code sections 453B.3 and
453B.12. On appeal, he claims the district court erred in denying his motion to
suppress evidence. He also claims there is insufficient evidence to support his
convictions, the district court committed instructional error, and the district court
erred in admitting improper opinion evidence.
I.
Gallardo lives with his mother and stepfather and serves as their
caretaker. On February 2, 2013, Gallardo and his mother went to a Hy-Vee
grocery store in Des Moines. Gallardo and his mother each purchased and paid
for their own groceries. Gallardo placed his groceries on the floor of the back
seat of their sedan and separately placed his mother’s groceries on the back seat
to distinguish them. Gallardo drove his mother to their home on the east side of
Des Moines, and he brought her groceries inside. Afterward, Gallardo drove to
his girlfriend’s apartment. Although Gallardo lived with his mother and
stepfather, he also stayed with his girlfriend at her residence in Pleasant Hill.
According to Gallardo, while driving to his girlfriend’s apartment, he
noticed a pill bottle on the floor of the car with his mother’s name on it. The pill
bottle contained morphine pills. He claims he called his mother and told her that
her prescription had been left in the car and that he would drop it off later. The
mother attempted to testify to this at trial. The district court disallowed the 3
testimony, but Gallardo was allowed to make an offer of proof. The offer of proof
showed the mother would have corroborated Gallardo’s story.
At some point later in the evening, Taylor Stacey called Gallardo and
asked him for a ride to the Target store. Gallardo testified that he and Stacey
were platonic friends. He testified he often gave Stacey rides because she did
not own a car. On this night, Stacey was at the American Inn, a hotel on the
northwest side of Des Moines known for drug activity. Gallardo testified that he
drove from his girlfriend’s apartment to the American Inn to give Stacey a ride.
He testified he planned to deliver to his mother her medication when he returned
to his girlfriend’s apartment. On the drive to the American Inn, Gallardo called
Stacey and asked if he could use the restroom in her hotel room before they
went to Target.
Somewhere around this time, officers responded to an anonymous tip that
there was drug activity in the American Inn hotel room where Stacey was
located. The officers performed a consensual search of the room and discovered
white powdered crystals that appeared to be methamphetamine. They also
discovered a needle and a spoon. Stacey, who appeared to be under the
influence of opiates rather than methamphetamine, admitted that she regularly
used opiates. Her drug of choice is morphine or Oxycontin.
Gallardo arrived at the hotel room while the search was being conducted.
Stacey opened the door, and the officers immediately performed a Terry stop. At
a subsequent suppression hearing, the officer initiating the stop testified that he
asked Gallardo whether Gallardo had anything illegal on him and that Gallardo 4
responded that he had pills in his pocket and handed the pill bottle to the officer.
The pill bottle had Gallardo’s mother’s name on it, and it contained twenty
morphine pills. The officer continued to question Gallardo, who explained that he
was returning the pills to his mother. The officer testified that Gallardo’s story did
not make sense given the timing, the location of the hotel, and the proximity of
the hotel to the Target store (across the street). Gallardo testified the officers
grabbed him while he was still standing in the doorway, pulled him into the hotel
room, and handcuffed him behind his back. He testified the officers found the
pills upon conducting a search of his pockets.
Gallardo was arrested and charged with possession of a controlled
substance with the intent to deliver, as well as failure to possess a tax stamp.
Gallardo moved to suppress “any and all evidence resulting from [his] search and
seizure,” arguing there was no valid Terry stop or any other legal basis for the
search and seizure of his person. The trial court denied the motion after a
hearing. The case proceeded to a jury trial, and the jury found Gallardo guilty of
the lesser included offense of possession of a controlled substance, as well as
the tax-stamp charge. He was sentenced to one year in prison on the
possession charge and five years in prison on the tax-stamp charge, with the
sentences running concurrently. Gallardo timely filed this appeal.
II.
Gallardo challenges the trial court’s denial of his motion to suppress,
arguing it violated his right to be free of unreasonable search and seizures under
the Fourth Amendment of the United States Constitution and Article I, section 8 5
of the Iowa Constitution. Specifically, Gallardo contends the search of his person
did not fall into one of the exceptions to the warrant requirement because the
officers did not have a reasonable suspicion he was involved in criminal activity.
We review this claim de novo. See State v. Lowe 812 N.W.2d 554, 566 (Iowa
2012).
A citizen’s constitutional right to be free from unreasonable searches and
seizures does not prohibit police from temporarily detaining an individual when
there are reasonable grounds to believe criminal activity is afoot. State v. Dewitt,
811 N.W.2d 460, 468 (Iowa 2012). This type of seizure, commonly known as a
Terry stop based upon the Supreme Court’s holding in Terry v. Ohio, 392 U.S. 1,
30 (1968), allows police to confirm or dispel suspicions of criminal activity
through reasonable questioning. Dewitt, 811 N.W.2d at 468. In addition to
conducting questioning, “[p]olice are allowed to pat down a suspect if they have
reasonable suspicion that a crime is being or is about to be committed.” State v.
Bergmann, 633 N.W.2d 328, 332-33 (Iowa 2001). The test determining the
constitutionality of a Terry stop and frisk is one of reasonableness, based on
what is reasonable under the particular circumstances at the time of the stop. Id.
Whether a reasonable suspicion exists is determined by using an
objective standard: whether the facts available to the officer at the time of the
stop would lead a reasonable person to believe that the action taken by the
officer was appropriate. See State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997).
The facts articulated by the officer must support the intrusion on the individual’s
privacy and the scope of the intrusion must be related to the circumstances that 6
justified the intrusion. See id. It must be more than a hunch, suspicion, or gut
feeling. See id. Ultimately, whether reasonable suspicion exists must be
determined in the light of the totality of the circumstances confronting the officer.
State v. Kreps, 650 N.W.2d 636, 642 (Iowa 2002).
We need not resolve the conflict between the officer’s testimony and
Gallardo’s testimony regarding the sequence of events. Even if Gallardo is to be
believed, we conclude the totality of the circumstances gives rise to a reasonable
suspicion of criminal activity sufficient to justify the stop and frisk. Gallardo
argues his mere presence in an area known for narcotics trafficking is insufficient
to create the reasonable suspicion necessary for a Terry stop, citing Illinois v.
Wardlow, 528 U.S. 119, 124 (2000). Nor is it reasonable, he argues, to infer that
a person who talks to drug addicts is engaged in the criminal traffic of narcotics.
See Sibron v. New York, 392 U.S. 40, 62 (1968). There are numerous other
facts and circumstances present here, however, that make the present case
distinguishable. In addition to the hotel being known for drug activity, the officers
had a tip concerning drug activity in the room Stacey occupied. The officers
discovered narcotics in the room before Gallardo arrived. Stacey initially claimed
the narcotics belonged to a male who had just left the room. Gallardo knocked
on the door to Stacey’s room during the investigation. One of the officers
testified it is “quite likely” that a person who arrives at a location known for drug
activity during the execution of a search warrant “is either seeking drugs or may
possess drugs themselves.” When he arrived at the room, Gallardo exhibited the
mannerisms of someone who is under the influence of methamphetamine: 7
“tweaky body mannerisms with his arms and hands,” profuse sweating at his
hairline despite it being a cold February day, a rapid speech pattern, rapid
blinking, and a jaw-clenching mannerism. Because the totality of these
circumstances provides reasonable suspicion, we affirm the denial of Gallardo’s
motion to suppress. See Wardlow, 528 U.S. at 124-25 (holding the defendant’s
presence in area of heavy narcotics trafficking, coupled with his unprovoked flight
upon noticing the police, provided reasonable suspicion to justify a Terry stop);
United States. v. Mason, 628 F.3d 123, 129 (4th Cir. 2010) (noting that although
“each component that contributes to reasonable suspicion might not alone give
rise to reasonable suspicion,” “the existence of reasonable suspicion is a case-
specific inquiry based on the totality of the circumstances”).
III.
Gallardo challenges his convictions by raising an “ultimate user” defense,
which he argues is an exception or defense to the possession statute. Although
the State alleges Gallardo failed to preserve error on this issue, we disagree.
This issue was raised before the start of trial when the State objected to
Gallardo’s mother testifying, arguing that there is no recognized legal defense to
possession of a prescription drug that is in someone else’s name. Gallardo’s trial
counsel resisted and the trial court forbade Gallardo from arguing possessing
another’s prescription is not illegal. The issue was again raised at the close of
trial, when counsel objected to the jury instruction on the elements of possession
of a controlled substance. Counsel also raised the issue in his motions in arrest
of judgment and for new trial, arguing Gallardo was not guilty because he was in 8
possession of his mother’s medication, for which she had a valid prescription.
Although Gallardo never specifically referenced the term “ultimate user,” we find
he has sufficiently preserved error for our review.
Gallardo’s argument regarding the “ultimate user” exception is raised first
as a challenge to the trial court’s rulings on his motions for judgment of acquittal
and new trial. Specifically, Gallardo argues the State failed to rebut evidence he
was an “ultimate user,” which entitles him to judgment as a matter of law. See
State v. Gibbs, 239 N.W.2d 866, 869 (Iowa 1976) (holding that once a defendant
has produced some evidence an exception to the statute applies, the burden
shifts to the State to negate the exception beyond a reasonable doubt). Gallardo
also alleges the trial court erred in forbidding him from making any argument that
“possession of someone else’s prescription is not illegal” and in not instructing
the jury regarding the “ultimate user” exception. The resolution of Gallardo’s
claim, however styled, requires us to resolve two issues. First, was there
substantial evidence in the record to support the ultimate user exception?
Second, does Iowa law recognize such a defense?
Turning to the first issue, the State contends Gallardo’s claim that he was
in possession of the morphine pills to return them to his mother is self-serving
and not credible and Gallardo thus should not have been able to present the
defense even if Iowa law allowed it. That is not the relevant standard. We
review challenges to jury instructions for the correction of errors at law but review
the related claim that a requested instruction should have been given for an
abuse of discretion. State v. Guerrero Cordero, 861 N.W.2d 257-58, 431 (Iowa 9
2014). When weighing sufficiency of the evidence to support a requested
instruction, we construe the evidence in the light most favorable to the party
seeking submission. Id. at 258. The court is required to instruct the jury on the
law for all material issues raised by the evidence in a case. Id. at 260. Where
the defendant timely requests an instruction on a theory of defense, the theory is
supported by the evidence, and the instruction is a correct statement of the law,
the instruction must be given. Id.
We conclude there was sufficient evidence to support submitting the
defense to the jury. Gallardo and his mother would have testified that he was in
lawful possession of the pills to return them to his mother, the “ultimate user.”
His story may or may not be believable. It is equally likely that Gallardo had an
unlawful purpose for bringing the pills with him to the American Inn on the night in
question, namely to trade them with Stacey for other drugs. However, the
evidence supports either finding, and the question of whether the “ultimate user”
exception would apply to the facts of this case is a matter for the factfinder to
decide. See State v. McClelland, 162 N.W.2d 457, 461 (Iowa 1968) (“It is the
function of the jury, not ours, to decide disputed questions of fact, including
permissible inferences to be drawn therefrom . . . .”).
Because the issue was raised to the trial court and the evidence supports
the “ultimate user” exception, the question we must next address is whether an
“ultimate user” exception is a correct statement of law. In other words, we must
determine whether an “ultimate user” exception exists. The “ultimate user”
exception has not been explicitly addressed in Iowa. The issue was discussed in 10
State v. Clark, No. 04-1684, 2006 WL 468476, at *3-4 (Iowa Ct. App. Mar. 1,
2006). In that case, the defendant argued there was insufficient evidence to
support his possession conviction because the prescription pills found in his
vehicle belonged to his girlfriend’s mother, with whom he lived. Id. The court
found sufficient evidence supported the defendant’s possession conviction on
facts distinguishable from Gallardo’s situation. Id. at *4. While the prescription
holder was a member of the defendant’s household, they resided in Florida and
the prescription holder was not in the car with him when it was stopped in Iowa.
Id. The defendant also admitted he sometimes used the prescription medication
to help him sleep, which is not a valid use because the prescription was not
issued to him. Id. Clark thus did not expressly decide the existence of an
“ultimate user” exception to a possession charge.
We turn to the language of chapter 124. See State v. Slutyer, 763 N.W.2d
575, 581 (Iowa 2009) (stating the “primary rule of statutory interpretation” is to
give effect to the intention of the legislature, which is ascertained by looking to
the language of the statute). The code provides, “It is unlawful for any person
knowingly or intentionally to possess a controlled substance unless such
substance was obtained directly from, or pursuant to, a valid prescription or order
of a practitioner while acting in the course of the practitioner’s professional
practice, or except as otherwise authorized by this chapter.” Iowa Code
§ 124.401(5). While the possession statute does not directly reference an
“ultimate user” exception, it does provide that one may lawfully possess a
controlled substance obtained pursuant to a valid prescription or “as otherwise 11
authorized by this chapter.” Iowa Code § 124.401(5). In the definitions provided
for chapter 124, an “ultimate user” is defined as “a person who lawfully
possesses a controlled substance for the person’s own use or for the use of a
member of the person’s household.” Id. § 124.101(30). Iowa Code section
155A.3 provides, “‘Ultimate user’ means a person who has lawfully obtained and
possesses a prescription drug or device for the person’s own use or for the use
of a member of the person’s household or for administering to an animal owned
by the person or by a member of the person's household.” The term “lawful
possession” is not defined in chapter 124, leading to some ambiguity regarding
what situations a household member may possess a controlled substance. If a
statute is ambiguous, we determine the intention of the legislature by
considering:
“(1) the object sought to be attained, (2) the circumstances under which the statute was enacted, (3) the legislative history, (4) the common law or former statutory provisions, including laws upon the same or similar subjects, (5) the consequences of a particular construction, (6) the administrative construction of the statute, and (7) the preamble or statement of policy.”
Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996) (quoting Iowa Code § 4.6).
What is now chapter 124 of the Iowa Code was originally adopted from the
Uniformed Controlled Substance Act (UCSA). See State v. Rasmussen, 213
N.W.2d 661, 665 (Iowa 1973). The express purpose of the act is “to achieve
uniformity between the laws of the several States and those of the Federal
government.” Id. (quoting Prefatory Note to Uniform Controlled Substances Act
(1970)). We presume that in adopting the UCSA, the Iowa legislature “intended
to come within the scheme of complementary federal-state control of the 12
distribution of drugs and to create an ‘interlocking trellis’ to assure effectiveness
of the Act.” Id. To this end, we should construe chapter 124 in conjunction with
decisions from other states that have adopted the UCSA and look to similar
federal and state statutes for guidance in interpreting any of its provisions.
Missouri adopted the same version of the UCSA as Iowa. See State v.
Morrow, 535 S.W.2d 539, 542 (Mo. Ct. App. 1976) (noting Missouri adopted the
Uniform Controlled Substances Act in 1971). Its definition of “ultimate user” is
substantially similar to the definition found in Iowa law. Compare Mo. Rev. Stat.
§ 195.010(40) (defining an “ultimate user” as “a person who lawfully possesses a
controlled substance or an imitation controlled substance for his own use or for
the use of a member of his household or for administering to an animal owned by
him or by a member of his household”) with Iowa Code § 124.401(30) (defining
an “ultimate user” as “a person who lawfully possesses a controlled substance
for the person’s own use or for the use of a member of the person’s household or
for administering to an animal owned by the person or by a member of the
person’s household”). The Missouri Supreme Court has interpreted the definition
“to allow a household member to possess or control the prescriptions of another
household member” so long as the use of the prescribed substance remains
lawful. See State v. Blocker, 133 S.W.3d 502, 505 (Mo. 2004). In other words,
“a son could lawfully retrieve a prescription drug for his bedridden father,” but
“[l]awful possession would cease if the son used the drug himself or transferred it
for use by another person.” Id. In reaching this conclusion, the Missouri 13
Supreme Court noted the “absurd” results that could be reached if the ultimate
user exception did not exist.
For instance, if spouses share and have joint control over a medicine cabinet, the spouse without the prescription could be charged with illegally possessing a controlled substance prescribed to the other . . . . However, by including household members among those who may lawfully possess or control substances prescribed to another household member, the General Assembly exempted household members from prosecution for prescription drugs because each household member’s possession or control arises “pursuant to” a prescription.
Id.
Utah, which also adopted the UCSA in 1971, see Vol. 9, Pt. II, Uniform
Laws Annotated, Master Edition, also provides a similar exception to its
possession statute. See State v. Miller, 193 P.3d 92, 95-96 (Utah 2008). While
not referred to as an “ultimate user” exception, it provides an exception for the
type of “innocent possession” that exists where a person temporarily possesses
a controlled substance for the purpose of returning it to its lawful owner. See id.
In so finding, the Utah Supreme Court noted that strictly construing the term
“possess” to include every type of possession would lead to “absurd
prosecutorial possibilities.” See id. at 96.
A daughter who no longer lives at home but who picks up her sick mother’s prescription medication and drives it to her mother’s home, for example, could be guilty of felony possession under a strict construction of the term “possess.” And, as this case demonstrates, a house guest who inadvertently leaves a prescription bottle of pills at a homeowner’s home creates an impossible situation for the homeowner wherein she could do nothing short of immediately fleeing her home to avoid “possessing” the pills. 14
Id. Even though the Utah Controlled Substance Act provides a definition of
“ultimate user” nearly identical to that found in the Iowa Code, see Utah Code
Ann. § 58-37-2(1)(pp) (West), the Utah Supreme Court did not cite it or limit its
holding that “the possession statute implicitly includes the defense of innocent
possession” to only “ultimate users.” See Miller, 193 P.3d at 96. However, in
addition to proving the controlled substance was “attained innocently and held
with no illicit or illegal purpose,” Utah’s “innocent possession” defense requires a
person take “adequate measures to rid [one]self of a controlled substance as
reasonably as possible.” Id. at 97.
Other states have noted similar defenses for an ultimate user or innocent
possession. See Walker v. State, 358 So. 2d 800, 808 (Ala. Crim. App. 1978) (“It
should be noted that possession of a controlled substance by an ‘ultimate user or
person in possession of a controlled substance pursuant to a lawful order of a
practitioner does not constitute a violation of the Controlled Substances Act.’”
(quoting Ala. Code § 20-2-51)); McCoy v. State, 56 So. 3d 37, 39 (Fla. Dist. Ct.
App. 2010); (noting the defendant’s claim she was holding her husband’s pills on
his behalf, “if taken as true,” provided a defense to possession charge as
husband’s agent under Florida law); State v. Jaushlin, No. 104,195, 2011 WL
5833291, at *3, *6 (Kan. Ct. App. Nov. 18, 2011) (finding trial counsel ineffective
in failing to request a jury instruction on lawful possession defense based upon
an ultimate user definition where substantial evidence at trial supported the
theory); State v. Faggin, 150 So. 3d 298, 299 (La. 2014) (noting the defendant’s
claim she lived with the prescription holder and acted as an agent for him in 15
retrieving pills on his behalf was a defense on the merits for a fact finder at trial).
Construing Iowa law in conjunction with these decisions, we conclude chapter
124 provides an “ultimate user” exception as set forth in Blocker, 133 S.W.2d at
505.
This conclusion is required by State v Gibbs, 239 N.W.2d 866 (Iowa
1976). In that case, the defendant was convicted of possession of a controlled
substance, amphetamines. See id. at 867. At trial, the State did not produce any
evidence regarding whether the defendant had a valid prescription for the
amphetamines. The defendant rested without presenting any evidence. In post-
trial motion and on appeal, the defendant contended the State was required to
prove that he did not obtain the amphetamines, “‘directly from, or pursuant to, a
valid prescription . . . or except as otherwise authorized by this chapter.’” Id. The
State contended that it was not required to negate the prescription exception,
relying on the following statutory language:
It is not necessary for the state to negate any exemption or exception set forth in this chapter in any complaint, information, indictment or other pleading or in any trial, hearing, or other proceeding under this chapter. The proof of entitlement to any exemption or exception by the person claiming its benefit shall be a valid defense.
Iowa Code § 204.507(1) (1973) (recodified at Iowa Code § 124.507). The court
held that possessing the controlled substances pursuant to a valid prescription
was an exception to rather than an element of the offense. The court further held
that where the defendant presented some evidence the circumstances fell within
the exception then the State was “obligated to assume the burden to negate the
exception beyond a reasonable doubt.” Gibbs, 239 N.W.2d at 869. 16
The same result should obtain here. We conclude Gallardo was entitled
to argue this theory to the jury and to have the jury so instructed. Where, as
here, the defendant presented some evidence that he was an “ultimate user,” the
State has the constitutional burden of coming forth with evidence to negate the
exception beyond a reasonable doubt. To come within the exception, the
defendant would have to introduce some evidence establishing each of the
following: (1) the controlled substance was obtained pursuant to a valid
prescription; (2) the defendant came into lawful possession of the controlled
substance; and (3) the defendant lawfully possessed the controlled substance for
his or her own lawful use pursuant to a valid prescription or for the lawful use of a
member of the defendant’s household pursuant to a valid prescription.
Conversely, because all three of the foregoing elements must be established to
fall within the exception, the State could negate the exception beyond a
reasonable doubt by disproving one or more of the elements.
IV.
If the evidence is legally insufficient to support Gallardo’s convictions,
double jeopardy precludes retrial. See State v. Reeves, 670 N.W.2d 199, 201
(Iowa 2003). Therefore, we must consider Gallardo’s claim the trial court erred in
denying his motion for judgment of acquittal because the evidence is insufficient
to rebut the presumption he was an “ultimate user.” “‘[A] conviction rests upon
insufficient evidence when, even after viewing the evidence in the light most
favorable to the prosecution, no rational factfinder could have found the 17
defendant guilty beyond a reasonable doubt.’” Id. at 202 (quoting Tibbs v.
Florida, 457 U.S. 31, 37-38 (1982) (alteration in original)).
When all the evidence in the record is viewed in the light most favorable to
the State, there is substantial evidence upon which a rational factfinder could
have found Gallardo guilty beyond a reasonable doubt. Gallardo arrived at a
hotel known for drug activity at the room of an admitted opiate addict with a bottle
of opiates in his pocket. Methamphetamine was discovered in the room, and
Gallardo exhibited behaviors of a person using methamphetamine. On this
basis, a reasonable factfinder could infer Gallardo went to the hotel room with an
unlawful purpose for the prescription morphine in mind. Substantial evidence in
the record justifies an inference Gallardo is guilty, and therefore, the motion for
judgment of acquittal was properly denied. See State v. Ellis, 578 N.W.2d 655,
658 (Iowa 1998) (stating that if there is substantial evidence justifying an
inference of guilt, the motion for judgment of acquittal must be denied).
V.
We affirm the ruling on Gallardo’s motion to suppress the evidence
procured during the stop and search of his person at the American Inn. We
reverse Gallardo’s convictions for possession of a controlled substance and a
drug tax stamp violation. The case is remanded for new trial to allow Gallardo to
present evidence related to the “ultimate user” exception. Accordingly, we need
not consider Gallardo’s remaining claims on appeal.
REVERSED AND REMANDED.
McDonald, J., dissents. 18
MCDONALD, J., DISSENTING
I respectfully dissent. The defendant failed to preserve error on the
challenge to the jury instructions. While the colloquy regarding the instructions is
messy, ultimately defense counsel stated, “I am not objecting to the instructions
as submitted.” He also failed to submit a proposed instruction incorporating the
ultimate user exception. I cannot conclude the district court abused its discretion
in refusing to give an instruction when no such instruction was provided to the
district court. In light of the failure to preserve error on the instruction, I also
conclude the district court did not err or abuse its discretion in denying Gallardo’s
motions. There was sufficient evidence to support the convictions on the
instructions given. The remainder of the defendant’s arguments is without merit.
I would affirm the defendant’s convictions and sentences.