IN THE COURT OF APPEALS OF IOWA
No. 19-0653 Filed August 19, 2020
STATE OF IOWA, Plaintiff-Appellee,
vs.
QUENTIN JOHNSON, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Lars Anderson,
Judge.
Quentin Johnson appeals his conviction of possession of marijuana with
intent to deliver. REVERSED AND REMANDED.
Mark C. Meyer, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ. 2
MULLINS, Judge.
Quentin Johnson appeals his conviction of possession of marijuana with
intent to deliver. Johnson argues the district court erred in refusing to allow
presentation of his accommodation defense.
On August 26, 2017, Johnson was driving to a gathering and failed to stop
at a newly-placed stop sign. Three police officers, the entire Street Crimes Action
Team (SCAT) Unit, were monitoring the new stop sign and pulled Johnson over.
The SCAT Unit searched Johnson and his vehicle. They found nearly fifty-five
grams of marijuana in Johnson’s underwear and more than $1300 in cash in his
sock. The police analysis shows the marijuana was packaged in four bags,
containing 26.1, 23.8, 2.3, and 3.2 grams each.1 Johnson also had two cell phones
and was driving a rental car. Johnson was charged in Count I with possession of
marijuana with intent to deliver, in violation of Iowa Code section 124.401(1)(d)
(2017). After a jury trial, he was convicted of that offense as charged.2
At trial, Johnson testified he was on his way to a viewing party for a sporting
event when he was pulled over. He also described his work as a talent manager
and promoter in the music and entertainment industries. Johnson said he is
expected to socially provide for the talent he manages in terms of visiting clubs
and social events and covering the related costs. Johnson’s business covers local
and national events, requiring some travel. Johnson said his business is largely
1 One ounce equals approximately 28.35 grams. 2 Johnson was charged with other criminal offenses related to the August 26, 2017 incident with the SCAT Unit. He was convicted of a drug stamp offense but does not challenge that conviction on appeal. 3
done in cash transactions. He testified he keeps the cash in his sock because, in
his youth, it fell out of his pockets and was lost.
Johnson also testified he uses marijuana to treat chronic pain and other
physical ailments. He admitted to being a heavy smoker and repeatedly denied
selling marijuana. Johnson said he intended to use the marijuana personally and
would share a little at the party if requested. He said the shared portion would be
“just enough to smoke” and answered “yes” when asked if that portion would be
less than one-half ounce.
At the close of the evidence, Johnson argued he should be allowed to
present an accommodation defense, insisting the amount of marijuana that would
be shared was less than one-half ounce and that it was not for sale. See Iowa
Code § 124.410. The district court denied the request, stating there was no
precedent indicating the marijuana could be split into personal use and sharable
portions to qualify for an accommodation defense. Johnson appeals.
Johnson alleges his claimed defense, accommodation, was supported by
sufficient facts and should have been presented to the jury. “Our review is for the
correction of errors at law.” See State v. Allen, 633 N.W.2d 752, 754 (Iowa 2001).
“A defendant is entitled to submit a theory of defense if the theory correctly
states the law and is supported by substantial evidence.” Id. Evidence is
substantial if it “could convince a rational finder of fact that the defendant has
established his affirmative defense.” State v. Bynum, 937 N.W.2d 319, 327 (Iowa
2020) (quoting State v. Guerrero Cordero, 861 N.W.2d 253, 257 (Iowa 2015),
overruled on other grounds by Alcala v. Marriot Int’l, Inc., 880 N.W.2d 699, 708 &
n.3 (Iowa 2016)). Here, Johnson wanted to argue before the jury that he intended 4
to share, but not sell, not more than one-half ounce of the marijuana he possessed
and that the remainder of the marijuana in his possession was for his personal use.
His testimony supported that claim.
The State argues two of our decisions support a conclusion the amounts in
smaller baggies cannot be separated from the aggregate. See State v. Steel, No.
16-0978, 2017 WL 3065147, at *4 (Iowa Ct. App. July 19, 2017) (noting two
separate amounts of marijuana amounted to “more than the one-half ounce
referenced in the accommodation statute”); Dodge v. State, No. 01-1739, 2003 WL
118267, at *2 (Iowa Ct. App. Jan. 15, 2003) (finding counsel was not ineffective for
failing to inform defendant about accommodation offense where defendant
admitted to possessing more than “the ounce accommodation limit of section
124.410 [(1997)]”). However, both of those cases were challenges to guilty pleas
in which there only needed to be a factual basis for the plea, not proof beyond a
reasonable doubt.
We find no precedent interpreting section 124.410 (2017) as to whether a
fact finder should be permitted to find a quantity of marijuana can be divided into
portions for personal and shared use. See Iowa Code §§ 124.401(5), .410.
Section 124.410 allows for an accommodation offense when a defendant
“possessed with intent to deliver one-half ounce or less of marijuana which was
not offered for sale,”3 and it may be proved as an included offense under
possession with intent to deliver, in violation of section 124.401(1)(d).
Furthermore, possession of marijuana in violation of section 124.401(5) is clearly
3The phrase “which was not offered for sale” was added by the legislature in 1999. 1999 Iowa Acts ch. 67, § 1. 5
a lesser included offense of possession with intent to deliver. Verdict form number
one allowed the jury to find Johnson possessed marijuana with intent to deliver
marijuana, requiring them to find that he either possessed more than one-half an
ounce or one-half an ounce or less; and if the latter, then whether he offered it for
sale. The jury returned verdict form one, finding “[t]he amount of marijuana
possessed by the [d]efendant was in an amount more than half an ounce.”
The State argues on appeal Johnson was not prejudiced by being denied
an opportunity to argue his theory in closing argument because, in his opening
statement, defense counsel “told the jury he possessed the marijuana for personal
use and that he might have given away half ounce or less at the fight party.” And
the State argues the defense theory “that he possessed the marijuana for personal
use was, in effect, included in the instructions.” In light of the State claiming he
was not prejudiced because components of the issue were before the jury, it also
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IN THE COURT OF APPEALS OF IOWA
No. 19-0653 Filed August 19, 2020
STATE OF IOWA, Plaintiff-Appellee,
vs.
QUENTIN JOHNSON, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Lars Anderson,
Judge.
Quentin Johnson appeals his conviction of possession of marijuana with
intent to deliver. REVERSED AND REMANDED.
Mark C. Meyer, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ. 2
MULLINS, Judge.
Quentin Johnson appeals his conviction of possession of marijuana with
intent to deliver. Johnson argues the district court erred in refusing to allow
presentation of his accommodation defense.
On August 26, 2017, Johnson was driving to a gathering and failed to stop
at a newly-placed stop sign. Three police officers, the entire Street Crimes Action
Team (SCAT) Unit, were monitoring the new stop sign and pulled Johnson over.
The SCAT Unit searched Johnson and his vehicle. They found nearly fifty-five
grams of marijuana in Johnson’s underwear and more than $1300 in cash in his
sock. The police analysis shows the marijuana was packaged in four bags,
containing 26.1, 23.8, 2.3, and 3.2 grams each.1 Johnson also had two cell phones
and was driving a rental car. Johnson was charged in Count I with possession of
marijuana with intent to deliver, in violation of Iowa Code section 124.401(1)(d)
(2017). After a jury trial, he was convicted of that offense as charged.2
At trial, Johnson testified he was on his way to a viewing party for a sporting
event when he was pulled over. He also described his work as a talent manager
and promoter in the music and entertainment industries. Johnson said he is
expected to socially provide for the talent he manages in terms of visiting clubs
and social events and covering the related costs. Johnson’s business covers local
and national events, requiring some travel. Johnson said his business is largely
1 One ounce equals approximately 28.35 grams. 2 Johnson was charged with other criminal offenses related to the August 26, 2017 incident with the SCAT Unit. He was convicted of a drug stamp offense but does not challenge that conviction on appeal. 3
done in cash transactions. He testified he keeps the cash in his sock because, in
his youth, it fell out of his pockets and was lost.
Johnson also testified he uses marijuana to treat chronic pain and other
physical ailments. He admitted to being a heavy smoker and repeatedly denied
selling marijuana. Johnson said he intended to use the marijuana personally and
would share a little at the party if requested. He said the shared portion would be
“just enough to smoke” and answered “yes” when asked if that portion would be
less than one-half ounce.
At the close of the evidence, Johnson argued he should be allowed to
present an accommodation defense, insisting the amount of marijuana that would
be shared was less than one-half ounce and that it was not for sale. See Iowa
Code § 124.410. The district court denied the request, stating there was no
precedent indicating the marijuana could be split into personal use and sharable
portions to qualify for an accommodation defense. Johnson appeals.
Johnson alleges his claimed defense, accommodation, was supported by
sufficient facts and should have been presented to the jury. “Our review is for the
correction of errors at law.” See State v. Allen, 633 N.W.2d 752, 754 (Iowa 2001).
“A defendant is entitled to submit a theory of defense if the theory correctly
states the law and is supported by substantial evidence.” Id. Evidence is
substantial if it “could convince a rational finder of fact that the defendant has
established his affirmative defense.” State v. Bynum, 937 N.W.2d 319, 327 (Iowa
2020) (quoting State v. Guerrero Cordero, 861 N.W.2d 253, 257 (Iowa 2015),
overruled on other grounds by Alcala v. Marriot Int’l, Inc., 880 N.W.2d 699, 708 &
n.3 (Iowa 2016)). Here, Johnson wanted to argue before the jury that he intended 4
to share, but not sell, not more than one-half ounce of the marijuana he possessed
and that the remainder of the marijuana in his possession was for his personal use.
His testimony supported that claim.
The State argues two of our decisions support a conclusion the amounts in
smaller baggies cannot be separated from the aggregate. See State v. Steel, No.
16-0978, 2017 WL 3065147, at *4 (Iowa Ct. App. July 19, 2017) (noting two
separate amounts of marijuana amounted to “more than the one-half ounce
referenced in the accommodation statute”); Dodge v. State, No. 01-1739, 2003 WL
118267, at *2 (Iowa Ct. App. Jan. 15, 2003) (finding counsel was not ineffective for
failing to inform defendant about accommodation offense where defendant
admitted to possessing more than “the ounce accommodation limit of section
124.410 [(1997)]”). However, both of those cases were challenges to guilty pleas
in which there only needed to be a factual basis for the plea, not proof beyond a
reasonable doubt.
We find no precedent interpreting section 124.410 (2017) as to whether a
fact finder should be permitted to find a quantity of marijuana can be divided into
portions for personal and shared use. See Iowa Code §§ 124.401(5), .410.
Section 124.410 allows for an accommodation offense when a defendant
“possessed with intent to deliver one-half ounce or less of marijuana which was
not offered for sale,”3 and it may be proved as an included offense under
possession with intent to deliver, in violation of section 124.401(1)(d).
Furthermore, possession of marijuana in violation of section 124.401(5) is clearly
3The phrase “which was not offered for sale” was added by the legislature in 1999. 1999 Iowa Acts ch. 67, § 1. 5
a lesser included offense of possession with intent to deliver. Verdict form number
one allowed the jury to find Johnson possessed marijuana with intent to deliver
marijuana, requiring them to find that he either possessed more than one-half an
ounce or one-half an ounce or less; and if the latter, then whether he offered it for
sale. The jury returned verdict form one, finding “[t]he amount of marijuana
possessed by the [d]efendant was in an amount more than half an ounce.”
The State argues on appeal Johnson was not prejudiced by being denied
an opportunity to argue his theory in closing argument because, in his opening
statement, defense counsel “told the jury he possessed the marijuana for personal
use and that he might have given away half ounce or less at the fight party.” And
the State argues the defense theory “that he possessed the marijuana for personal
use was, in effect, included in the instructions.” In light of the State claiming he
was not prejudiced because components of the issue were before the jury, it also
claims Johnson was not prejudiced by the court’s refusal to allow him to argue his
exact theory to the jury before it began its deliberations.
Our supreme court has held the crime of arson can include two lesser
offenses. State v. Royer, 436 N.W.2d 637, 641-42 (Iowa 1989). Unanswered is
the question of whether a defendant can be guilty of two lesser offenses following
a single charged offense. Lesser-included-offense determinations are normally
judicial decisions based on the legal elements test. See State v. Halliburton, 539
N.W.2d 339, 344 (Iowa 1995); see generally Blockburger v. United States, 284
U.S. 299, 304 (1932). We find it interesting, however, that the legislature chose to
statutorily declare that possession with intent to deliver one-half ounce or less of
marijuana that was not offered for sale is an accommodation offense, which “may 6
be proved as an included offense under a charge of delivering or possessing with
intent to deliver marijuana in violation of section 124.401, subsection 1.” See Iowa
Code § 124.410. And, if convicted of the accommodation offense, a defendant
shall be sentenced “as if convicted of a violation of section 124.401, subsection 5.”
Id. (emphasis added). “When the legislature adopts a law, we presume it intended
that the entire statute be effective.” Halliburton, 539 N.W.2d at 344.
We further presume the legislature knew possession of marijuana in
violation of section 124.401(5) is a lesser-included offense of possession with
intent to deliver marijuana in violation of section 124.401(1). The legislature
specifically and separately identified the offense of “possession with intent to
deliver one-half ounce or less of marijuana which was not offered for sale” as a
distinct offense but directed the same punishment as provided in section
124.401(5). And, the accommodation offense under section 124.410 would have,
without legislative pronouncement, been possession under section 124.401(5) as
a lesser included offense of possession with intent to deliver, under section
124.401(1). Presuming the legislature intended both sections 124.401(5) and
124.410 to be effective—not simply duplicative—a defendant could be guilty of
both included offenses arising out of possession with intent to deliver marijuana.
The facts show Johnson possessed four bags of marijuana containing 26.1,
23.8, 2.3, and 3.2 grams each. One ounce equals approximately 28.35 grams,
putting Johnson in possession of an aggregate weight of marijuana of nearly two
ounces. The State aggregated the bags for its charging decision, and a
reasonable jury could have found Johnson guilty of possession of marijuana with
intent to deliver, as it did. But, the State’s charging decision should not have 7
precluded Johnson from arguing lesser-included offenses under both sections
124.401(5) and 124.410 based on his asserted facts. The jury still would have
been permitted to find Johnson guilty as charged.
Thus, we conclude Johnson should have been permitted to argue he
possessed with intent to deliver one-half ounce or less of marijuana, which was
not offered for sale, and that the rest of the marijuana was for personal use and
not for delivery. It was for the jury to decide what the evidence proved.
We reverse and remand for a new trial on Count I.
REVERSED AND REMANDED.