IN THE COURT OF APPEALS OF IOWA
No. 17-0359 Filed March 21, 2018
STATE OF IOWA, Plaintiff-Appellee,
vs.
CHRIS AARON FRAKES, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Lee (South) County, John G. Linn
(trial and sentencing), John M. Wright (motion to suppress), Michael J. Schilling
(motion in limine), and Mary Ann Brown (revocation of deferred judgment and
judgment entry), Judges.
A defendant appeals his convictions by jury trial for possession of
methamphetamine, possession of marijuana with intent to deliver, and keeping a
drug house. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Kyle P. Hanson and Tyler J. Buller,
Assistant Attorneys General, for appellee.
Considered by Doyle, P.J., and Tabor and McDonald, JJ. 2
TABOR, Judge.
Chris Frakes believes evidence regarding “Pleasure Time Rentals”, his “sex
room” business venture, improperly prejudiced the jury in his trial for possession
of methamphetamine, possession of marijuana with intent to deliver, and keeping
a drug house. He also argues the search warrant was deficient and substantial
evidence does not support two of his convictions. Because the search warrant
was based on probable cause, and the law enforcement officer affiant did not
intentionally or recklessly mislead the court, we reject Frakes’s constitutional
challenge. We further find Frakes did not preserve error on his substantial-
evidence objection, but we address his alternative ineffective-assistance-of-
counsel claim, concluding Frakes cannot show he was prejudiced by counsel’s
omission. Finally, because the district court placed appropriate limits on the
testimony and exhibits relating to “Pleasure Time Rentals” and Frakes’s financial
matters, and that evidence was more probative than prejudicial, we decline to
reverse on that basis.
I. Facts and Prior Proceedings
On November 6, 2015, law enforcement officers executed a search warrant
at Frakes’s home. Officers based the warrant application on an anonymous tip
received three months earlier and on the reports from a named informant familiar
with Frakes’s drug distribution.
While searching Frakes’s home, officers discovered plastic baggies, scales,
drug paraphernalia, a small quantity of marijuana, a trace amount of
methamphetamine, large amounts of cash hidden in various places, and a
basement filled with sex toys. Officers interviewed Frakes, who told them he did 3
not use marijuana but gave it to women in his home before engaging in sexual
activity with them. Frakes also told officers about a defunct business venture in
which he proposed to rent out a room in his house containing equipment used for
sexual activity. Frakes said he closed the business six months before being
arrested. The State charged Frakes with possession of methamphetamine with
intent to deliver, possession of marijuana with intent to deliver, and keeping a drug
house.
Following a pretrial motion to suppress, the case proceeded to a jury trial.
The jury found Frakes guilty of possession of methamphetamine,1 possession of
marijuana with intent to deliver,2 and keeping a drug house.3 The district court
granted Frakes a deferred judgment but after he violated his probation the court
sentenced him to a term not to exceed five years imprisonment and several fines.
Frakes now appeals his convictions.
II. Analysis
A. Motion to Suppress
Frakes contends the district court should have suppressed the evidence
discovered from execution of the search warrant on his house because 1) the
warrant lacked probable cause, and 2) the affiant-officer intentionally or recklessly
misled the court in the warrant application.
When a motion to suppress involves state or federal constitutional grounds,
our review is de novo. See State v. Baldon, 829 N.W.2d 785, 789 (Iowa 2013)
1 Iowa Code § 124.41(5) (2015). 2 Iowa Code § 124.410(1)(d). 3 Iowa Code § 124.402(1)(e). 4
(analyzing Fourth Amendment of the U.S. Constitution and Article I, section 8 of
the Iowa Constitution). We independently evaluate the totality of the
circumstances as demonstrated by the entire record. See id. We consider both
the evidence presented at the suppression hearing as well as the evidence
presented at trial. See State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005). “[W]e give
deference to the factual findings of the district court due to its opportunity to
evaluate the credibility of the witnesses but are not bound by such findings.” State
v. Lane, 726 N.W.2d 371, 377 (Iowa 2007).
On our review of probable cause to issue a search warrant, we “decide
whether the issuing judge had a substantial basis for concluding probable cause
existed.” State v. Gogg, 561 N.W.2d 360, 363 (Iowa 1997). “[W]e do not
independently determine probable cause.” State v. McNeal, 867 N.W.2d 91, 100
(Iowa 2015). Probable cause exists when “a person of reasonable prudence would
believe a crime was committed on the premises to be searched or evidence of a
crime could be located there.” Gogg, 561 N.W.2d at 363 (quoting State v. Weir,
414 N.W.2d 327, 330 (Iowa 1987)).
1. Probable Cause
In the search warrant application, Officer Chad Donaldson of the Lee
County Sheriff’s Department advised the court an unknown “citizen informant” had
reported “an ongoing pattern of short term ‘come and go traffic’” from Frakes’s
home, which the informant believed was drug-related activity. The tip dated from
August 2015, about three months before the application.
Another informant, Cassie Underwood, reported she and her boyfriend,
Christian Jay Jones, went to Frakes’s home on October 30, 2015, and bought 5
methamphetamine. Underwood claimed to be working as a “middleman” for
Frakes’s drug sales—she purchased methamphetamine for others with money
they provided. She further recalled working with Frakes to divide a large amount
of methamphetamine into individual one-gram bags. She estimated she had
helped weigh methamphetamine with Frakes on ten different occasions. On one
occasion, they ended up with more than 300 bags. The affidavit does not state
when this occurred. Underwood also said Frakes hid cash in various places in his
home and kept records of drug transactions on his computer. Lee County
authorities arrested Underwood and Jones at their home after they had bought the
methamphetamine from Frakes. Jones had 1.4 grams of methamphetamine on
his person; officers found another quarter gram in their home.
Frakes argues the warrant lacked probable cause because Officer
Donaldson relied on a stale tip from an unknown “citizen informant” and information
provided by Underwood, an informant Donaldson acknowledged was “not known
for credibility” and had a motive to cast blame on Frakes in exchange for a more
favorable outcome after she and Jones were arrested.
When considering an anonymous tip, “we recognize a rebuttable
presumption that information imparted by a citizen informant is generally reliable.”
McNeal, 867 N.W.2d at 100. But, “an anonymous tip alone does not ordinarily
contain sufficient indicia of reliability to provide probable cause.” Id. at 100–101.
A “significantly corroborated anonymous tip” is sufficient. See id. at 101. If the
only evidence in the warrant application had been the anonymous tip and the
unnamed informant’s surmise that the traffic in and out of Frakes’s home was drug- 6
related, we might end the inquiry here. But in this case, the affiant provided
additional information.
A similar concern arises regarding the timeliness of the tip. “[P]robable
cause does not require absolute proof that the contraband was in the place in
question at the very moment the warrant was issued and executed,” though
ordinarily it “does not continue for an extended period of time”. State v. Paterno,
309 N.W.2d 420, 424 (Iowa 1981). A “staleness issue is resolved by consideration
of all the factors present in the particular situation.” Id. at 423. Again, additional
facts to support probable cause arose after the initial tip, much closer to the time
of the warrant application, in the form of Underwood’s report.
Officer Donaldson acknowledged Underwood’s self-serving motive for
providing information and her reputation for untruthfulness. But Donaldson also
found Underwood credible in this instance because her statements were “against
penal interests” and because they corroborated other information. Underwood
admitted going to Frakes’s home with Jones and buying methamphetamine. She
was familiar with Frakes’s distribution process and the location of his records. She
also said she assisted Frakes in his sales on a continuing basis. Officers found
her boyfriend, Jones, carrying methamphetamine. Underwood’s description of
Frakes’s drug operation comports with the August tip about in-and-out traffic at the
home and suggests a pattern of ongoing activity, rather than two isolated events.
A person of reasonable prudence could deduce Frakes was conducting illegal drug
activities from his home. The affidavit contained a substantial basis for the judge
to find probable cause existed for the search.
2. Representation by Affiant-Officer 7
Frakes next argues Officer Donaldson misled the court in his application for
the search warrant. Frakes bears the burden of establishing an intentional or
reckless misrepresentation to a judicial officer issuing a search warrant.4 See
Gogg, 561 N.W.2d at 364 (citing Paterno, 309 N.W.2d at 425). We may consider
all relevant facts and circumstances. Id. The affiant’s conduct “must be more than
mere negligence or mistake.” State v. McPhillips, 580 N.W.2d 748, 751 (Iowa
1998). Reckless disregard can be proven either (1) “by showing directly that the
affiant had serious doubts as to the veracity of an informant's statement” or (2)
“from circumstances evincing ‘obvious reasons to doubt the veracity’ of the
allegations.” State v. Niehaus, 452 N.W.2d 184, 187 (Iowa 1990) (citations
omitted). An omission of a material fact constitutes a misrepresentation only when
the omitted information casts doubt on the existence of probable cause. See id.
Frakes argues Donaldson either intentionally or with reckless disregard for
the truth omitted statements by Underwood that would have diminished her
credibility or contradicted the basis she provided for probable cause. He points to
Underwood’s interview with Donaldson where she asserted 1) she last purchased
drugs from Frakes “a week ago, probably” suggesting she was not at Frakes’s
house on October 30; 2) she was at home when Jones returned from Frakes’s
residence suggesting she had not accompanied Jones as she stated earlier; and
4 Frakes’s motion to suppress included the argument that Donaldson intentionally or recklessly omitted evidence such that the affidavit was false and misleading. Frakes renews this argument on appeal and briefly mentions the procedure set out in Franks v. Delaware, 438 U.S. 154 (1978). A Franks hearing allows a criminal defendant to challenge a search warrant by showing the affiant made a false statement either intentionally or with reckless disregard for the truth. Franks, 438 U.S. 154, 171. But, Frakes did not request a Franks hearing before the district court and does not now appear to argue he was deprived of one. 8
3) the most methamphetamine she had ever seen Frakes holding was “like four or
five grams.” While Underwood’s loquacious interview narrative was unfocused at
times, these statements do not cast doubt on the existence of probable cause of
drug activity in Frakes’s home. Underwood specifically said Frakes frequently
gave her methamphetamine, and the last time she purchased drugs from him was
about a week ago, which does not contradict her other assertions or suggest she
was not at Frakes’s home on the day in question. Her description of Jones kicking
down a door when the police arrived at their home also does not diminish the other
statements because it is not clear from the transcript exactly when this happened.
Finally, in context, Underwood’s statement about Frakes possessing “like four or
five grams” referred to “whatever Jay picked up from him the other night.” In an
earlier answer, she told Officer Donaldson she had previously seen Frakes with a
“chunk” of methamphetamine as big as “a frying pan.”
Further, Donaldson acknowledged Underwood was “not known for
credibility” but explained he believed her statements about Frakes because they
were against her interests and corroborated other evidence. Donaldson knew
Underwood hoped for leniency for her and Jones, but the interview transcript
shows Donaldson declined to assist Jones and made no guarantees to
Underwood. The circumstances do not demonstrate Donaldson had serious
doubts about the veracity of Underwood’s statements. As the district court noted,
Underwood supplied specifics as to the quantity and location of drugs and sales
documentation in the home, and her statements were consistent with other
evidence in the record. The circumstances do not demonstrate any obvious 9
reason to doubt the veracity of the allegations. Therefore, we cannot find Officer
Donaldson intentionally or recklessly misled the district court.
B. Sufficiency of the Evidence
On appeal, Frakes attacks the “specific intent to deliver” element of the
marijuana possession conviction5 and the “substantial purpose” element of the
keeping-a-drug-house conviction6. Frakes points out police officers discovered
only 17.58 grams or 0.62 ounces of marijuana in his house, an amount consistent
with personal use, rather than distribution. Frakes further argues the State
produced no testimony that the substantial purpose of the residence was for the
storage, possession, or sale of controlled substances. Frakes contends he
preserved error by moving for judgment of acquittal after the conclusion of the
State’s case and at the end of the defense case. In the alternative, Frakes argues
trial counsel was ineffective for failing to raise these issues.
At the close of the State’s case, defense counsel stated, “We do not feel the
evidence has been sufficient to establish each and every element of either of the
three offenses of which Mr. Frakes is charged[.]” The State responded it had
5 To find Frakes guilty of possession of marijuana with intent to deliver, the jury was required to find: 1. On or about November 6, 2015, the defendant knowingly possessed marijuana. 2. The defendant knew that the substance he possessed was marijuana. 3. The defendant possessed the marijuana with the intent to deliver. 6 To find Frakes guilty of keeping a drug house, the jury was required to find: 1. On or about the 6th day of November, 2015, the defendant knowingly kept or permitted another to keep or maintain a premises. 2. The defendant knew a substantial purpose for the keeping or maintaining of such place was for the on-going storage, possession, use or sale of one or more controlled substances. 10
shown credible evidence on “each and every element.” At the close of all evidence,
Frakes renewed his motion “for all the reasons mentioned” previously.
A motion for judgment of acquittal will not preserve a sufficiency-of-the-
evidence issue for review unless it identifies the specific elements of the crime for
which the defense believes the evidence is lacking. State v. Williams, 695 N.W.2d
23, 27 (Iowa 2005) (citing State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996)).
Frakes’s generic motion for judgment of acquittal did not preserve error on his
appellate claim.
We therefore address Frakes’s alternative argument that his trial attorney
was ineffective for not making a more specific motion for judgment of acquittal. We
review ineffective-assistance-of-counsel claims de novo. See State v. Straw, 709
N.W.2d 128, 133 (Iowa 2006). To prevail, Frakes must prove by a preponderance
of the evidence that defense counsel breached an essential duty resulting in actual
prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984). If the proof
is wanting on either element, the claim fails. See State v. Thorndike, 860 N.W.2d
316, 320 (Iowa 2015). On the prejudice prong, Frakes must show the attorney’s
mistake was “so serious as to deprive [the defendant] of a fair trial.” See Strickland,
466 U.S. at 687. It is not enough to show the mistake could have conceivably
influenced the trial’s outcome. Thorndike, 860 N.W.2d at 320. Rather, Frakes
must demonstrate but for counsel’s omission, there was a reasonable probability
of acquittal. See id. We often preserve such claims for postconviction-relief
proceedings where the applicant may develop supporting facts. See id. at 319.
But we may resolve the claims on direct appeal if the record is adequate. Id. In
this case, the record is adequate to resolve the claim. 11
Frakes does not explain in briefing how he might have been prejudiced by
his trial attorney’s failure to make more specific motions to acquit. “Evidence is
sufficient to withstand a motion for judgment of acquittal when, viewing the
evidence in the light most favorable to the State and drawing all reasonable
inferences in the State’s favor, ‘there is substantial evidence in the record to
support a finding of the challenged element.’” State v. Williams, 695 N.W.2d 23,
28 (Iowa 2005) (quoting State v. Reynolds, 670 N.W.2d 405, 409 (Iowa 2003)).
On our review of the evidence presented at trial, we find no reasonable
probability Frakes would have been acquitted had counsel lodged a more precise
motion. Officers recovered 17.58 grams of marijuana in Frakes’s home. Frakes
admitted to law enforcement, and again on the stand, that he possessed marijuana
and knew the substance to be marijuana. He also testified he shared the marijuana
with three women. An officer testified Frakes claimed he did not use marijuana
himself but gave it to women to “calm them down” before they engaged in sexual
encounters in Frakes’s basement. The jury was instructed “delivery” means
“actual, constructive, or attempted transfer of a substance from one person to
another.” See Iowa Code § 124.101(7); State v. Cartee, 577 N.W.2d 649, 652
(Iowa 1998) (holding small-scale “sharing of marijuana” met definition of delivery).
A jury would be free to reject the argument that the 17.58 grams of marijuana found
in the house was more consistent with personal use than distribution and could
reasonably infer Frakes had the specific intent to transfer it to another. Substantial
evidence in the record supports that conclusion.
The evidence also supports the jury’s verdict that Frakes maintained his
house for the substantial purpose of storing, possessing, using, or selling 12
controlled substances. Law enforcement witnesses testified Frakes was the only
occupant of the house. They recovered baggies consistent with drug distribution,
scales, drug paraphernalia, and large amounts of cash that had been hidden
through the house. They also found one-half gram of methamphetamine in a small
baggie. Law enforcement witnesses testified the evidence was consistent with
drug distribution. Frakes also told officers he gave marijuana to women in his
home. A reasonable jury could infer from the physical evidence and Frakes’s
statements that drug distribution was a substantial purpose of the house.
Accordingly, Frakes does not make the required showing that but for counsel’s
omissions, there was a reasonable probability he would have been acquitted.
C. Admissibility of Evidence Regarding Sex-Related Business
Frakes objects to the district court’s admission of testimony, documents,
and photographs related to his business venture called “Pleasure Time Rentals.”
The business model involved renting out a room in his house for customers to
conduct sexual activity with various “sex toys” stocked by Frakes. He advertised
the rental room as the “Pleasure Time Den.” Frakes also objected to admission of
his tax returns, an arbitration agreement, and documents from a lawsuit in which
Frakes was a party. According to Frakes, none of this evidence was material to
the drug charges; instead it “only served to shock the jury and place the defendant
in a bad light.”
We review rulings on the admissibility of evidence for an abuse of discretion.
State v. Thomas, 766 N.W.2d 263, 271 (Iowa Ct. App. 2009). “An abuse of
discretion occurs when the trial court exercises its discretion on grounds or for
reasons clearly untenable or to an extent clearly unreasonable.” Id. (internal 13
citations omitted). “We presume prejudice from the admission of irrelevant
evidence” unless the record shows a lack of prejudice. Id. (internal citations
omitted). Evidence is relevant if it “has any tendency to make a fact more or less
probable than it would be without the evidence” and the fact “is of consequence in
determining the action.” Iowa R. Evid. 5.401. The trial court may exclude relevant
evidence if its “probative value is substantially outweighed by the danger of . . .
unfair prejudice.” Iowa R. Evid. 5.403.
Frakes moved in limine to exclude photographs and testimony about
“Pleasure Time Rentals” and the “sex room.” The district court partially granted
Frakes’s motion, finding some sexually explicit photographs were cumulative, but
allowed admission of a limited number of photographs of the room as a whole,
noting evidence demonstrating the existence of the “sex room” tended to support
the State’s theory of the case.7 The court continued throughout trial to overrule
defense objections to the evidence as irrelevant and more prejudicial than
probative.
During trial, the State offered two photographs of Frakes’s bedroom broadly
showing a bed, swings, and other bondage devices. The photographs also feature
baggies, drug paraphernalia, and ductwork in the basement where police officers
discovered a large amount of cash. The photographs corroborated officer
testimony about what they found in the house. The State also offered into evidence
a business card advertising “Pleasure Time Rentals” that Frakes admitted handing
7 The district court noted neither party provided the actual photographs for the motion in limine, only descriptions. Based on the descriptions, the court excluded photographs of a magazine entitled “Fetish,” “anal plugs,” “Candy G-Strings,” and a rubber “sexual doll,” but permitted photographs of the room as a whole. 14
out and printouts from the website Frakes established for the business, including
a list of rental rates for the “sex room.”
1. Relevance
On appeal, Frakes insists the evidence was not relevant because he had
closed the business before his arrest, removing all the items from the rental room
to his own bedroom in the basement. He also argues there is no evidence he
earned any money from the venture. Nonetheless, a law enforcement officer
testified Frakes said he gave marijuana to women upstairs to “calm them down”
before conducting sexual activities in the basement. The presence of drug
paraphernalia and baggies in the basement also suggests the activities continued
downstairs. Although Frakes himself testified he shuttered the “sex room”
business, the admitted evidence was probative of ongoing and inter-related drug
and sexual activity in Frakes’s home. In particular, the challenged evidence
strengthens the State’s case that Frakes had an intent to deliver marijuana to
others as a prelude to or concurrent with the use of the “sex room.” The trial court
did not abuse its discretion in finding this evidence relevant.
The district court also allowed into evidence, over Frakes’s objections, his
tax returns, an arbitration agreement from a former employer indicating he was to
be paid in stock, and a lawsuit judgment against Frakes. The tax returns showed
Frakes stopped filing federal taxes in 2012; accompanying testimony indicated
Frakes stopped working regularly several years back. Law enforcement officers
indicated Frakes’s only source of income appeared to be “sell[ing] items here and
there” in what was described as a “cash business type thing.” In 2012, Frakes
claimed a negative income of $12,422. The lawsuit documentation showed a 15
judgment against Frakes of more than $5,700, which he testified he never paid.
Frakes argues this evidence was not relevant to the State’s case, and its prejudicial
effect outweighed any probative value. But all the foregoing evidence showed
Frakes had no legitimate source of income and therefore made it more likely the
large sums of cash found hidden throughout the house were proceeds of drug
sales. The court did not abuse its discretion in allowing this evidence into the
record.
2. Probative versus prejudicial effect
Frakes also argues the evidence was more prejudicial than probative. See
Iowa R. Evid. 5.403 (stating relevant evidence may be excluded if “its probative
value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence”). This rule is a balancing test where
the district court must measure the danger of unfair prejudice, confusion of the
issues, or misleading the jury against the probative value of the evidence; if the
scale tips toward the unfair prejudice categories, exclusion is appropriate. See
State v. Richards, 879 N.W.2d 140, 145 n.1 (Iowa 2016). 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 a jury to base its decision on something other than the established
propositions in the case.” State v. Neiderbach, 837 N.W.2d 180, 202 (Iowa 2013)
(internal quotations omitted).
Our review is somewhat hampered because the trial court did not articulate
how it balanced the evidence’s probative value against the prejudicial impact. 16
Frakes argues the evidence shocked the jurors and placed him in a bad light; he
was concerned they would view him as “kinky.” Even if the evidence presented
cast Frakes in a bad light, it nevertheless had strong probative value. Frakes’s
promotion of a “sex room”—complete with marijuana to relax the participants—
supported the State’s allegation that a substantial purpose of his house was to
possess, use, or distribute controlled substances. The district court reduced the
danger of unfair prejudice by excluding the more sexually explicit and cumulative
photographs. See State v. Putman, 848 N.W.2d 1, 15–16 (Iowa 2014). Likewise,
the prejudicial effect of Frakes’s financial papers did not substantially outweigh
their probative value. The State was entitled to show Frakes had no legitimate
source of income to explain the large amounts of cash hidden through his house.
The district court did not abuse its discretion in allowing any of the disputed
evidence.
AFFIRMED.