Opinion
No. 5-224 / 04-0915
Filed April 28, 2005
Appeal from the Iowa District Court for Lee (North) County, John G. Linn, Judge.
Leon Henry appeals from his conviction for possession of cocaine base. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Michael Short, County Attorney, and David Andrusyk, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
Leon Henry appeals from his conviction for possession of cocaine base. We now affirm.
I. Background Facts and Proceedings.
On May 16, 2002, Lee County Narcotics Task Force made three controlled buys of crack-cocaine and marijuana from a residence using a confidential informant, wired for transmission. During each of the buys, a male's voice was audible to law enforcement officers who listened to the transactions. Officers had previously performed a routine traffic stop of Thomas Davis, who had indicated his address was at the residence where the transactions occurred. After the third buy at approximately 1:30 p.m., officers showed the informant a picture of Davis whom the informant identified as the male who sold her the narcotics. Based on the controlled buys, officers obtained a search warrant for the residence, which was executed at approximately 8:00 p.m.
Upon entering the residence, officers found Jataun Wheeler and Leon Henry in the front bedroom smoking marijuana. Henry attempted to flee through the bedroom window, but was apprehended. A search of Henry's person revealed a small amount of marijuana, and cash totaling $490. A search of the front bedroom revealed (1) several baggies of crack cocaine in plain view on top of a dresser in the closet; (2) a dresser drawer containing a gold medallion engraved with the name "Leon;" (3) a man's black coat in the closet containing marijuana, crack cocaine, and $5,000 cash; (4) Leon Henry's wallet; (5) the cash used in the controlled buys situated under the mattress in the bedroom; (6) twelve $1,000 bundles of cash in the attic, which could be accessed through the bedroom closet.
Officers initially believed they had apprehended Thomas Davis because of the similarity of appearance between Leon Henry and Thomas Davis. This similarity was attested to by multiple officers at trial based on a photograph of Davis placed into evidence by the State. These same officers, however, when presented with another picture of Davis produced by the defense acknowledged significant differences in appearance between Davis and Henry. Officers initially believed Henry was using the name "Thomas Davis" as an alias, and did not pursue Davis as a suspect after apprehending Henry.
The State filed a trial information in Lee County District court charging Henry with felony possession with intent to deliver both crack-cocaine and marijuana, and a drug tax stamp violation. At the April 14, 2004 trial, Henry testified he had arrived at the residence some two hours prior to the execution of the warrant, and that he was not present during any of the earlier controlled buys. He claimed he attempted to flee through the window because of the small amount of marijuana in his pocket. He testified he was not a resident of the house, but rather an occasional guest. He claimed he did not know of the cash in the attic or the drugs in the bedroom dresser as he had no right to access those places.
Henry's story was corroborated by the testimony of Jataun Walker, the resident of the front bedroom in question, who testified that Henry was not present at the residence the previous night and was not present when the controlled buys transpired. She claimed Henry arrived at the residence during the evening hours of May 16th. She testified that it was Davis who sold the drugs to the confidential informant; and that the man's coat, its contents, and the money in the attic belonged to Davis. Jataun testified further that the contents of the dresser were hers, and that the medallion bearing the name "Leon" was given to her by Henry. Jessica Moeller, another resident, testified that while Henry visited the residence approximately four times per week, when he did spend the night he would sleep in the living room, not in the front bedroom. She also indicated Henry paid her monthly rent. She claimed Henry did not sell drugs out of the residence, but she did not identify Davis as the person involved in the controlled buys. At trial, Jessica recanted earlier statements made to law enforcement officers suggesting Henry had requested her to make crack-cocaine deliveries for him. Defense counsel made a motion for acquittal, citing a lack of evidence that Henry had a right to control the narcotics found in the bedroom. That motion was denied, and the case was presented to the jury.
The jury found Henry guilty of the lesser included offenses of possession of both marijuana and cocaine-base, but acquitted on the felony delivery and tax stamp charges. The matter proceeded to sentencing at which time Henry received a one-year prison term for crack-cocaine possession to run concurrent with a six-month prison term for marijuana possession. Henry now appeals his conviction and sentence for possession of crack-cocaine, claiming insufficient evidence of his right to control the drugs found in the dresser and the coat. Henry also alleges ineffective assistance of trial counsel for (1) failing to move for a new trial, and (2) failing to object to the State's introduction of gang evidence.
II. Scope and Standard of Review.
Challenges to the sufficiency of the evidence supporting a jury verdict are reviewed for correction of errors at law. Iowa R. App. P. 6.4; State v. Jacobs, 607 N.W.2d 679, 682 (Iowa 2000). Evidence is substantial where a rational jury could be convinced of the defendant's guilt beyond a reasonable doubt. State v. Casady, 597 N.W.2d 801, 804 (Iowa 1999). Evidence is not substantial, however, where it raises only suspicion, speculation or conjecture. State v. Speicher, 625 N.W.2d 738, 741 (Iowa 2001). While direct and circumstantial evidence are equally probative, a finding of guilt will be sustained only if the evidence when viewed in totality allows the fact-finder to draw "a fair inference of guilt as to each essential element of the crime." Id. (citations omitted). And while we review the entire record, not just evidence supporting guilt, we must view the evidence presented in the light most favorable to the State. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). "The possibility of drawing inconsistent conclusions from the same body of evidence does not prevent a finding from being supported by substantial evidence." Matter of Scott, 508 N.W.2d 653, 657 (Iowa 1993).
We review de novo the ineffective assistance of counsel claims raised by Henry. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). Claims of ineffective assistance of counsel raised on direct appeal are generally preserved for post conviction relief proceedings so that a sufficient record can be developed, and so attorneys whose ineffectiveness is alleged may have an opportunity to defend their actions. State v. Allen, 348 N.W.2d 243, 248 (Iowa 1984). But where the record on appeal is adequate to review the actions of trial counsel, or where it is clear from the record available that no prejudice resulted from counsel's unprofessional error, we may decide the ineffectiveness claim on direct appeal. Id. III. Discussion. A. Constructive Possession.
Henry claims the record contains insufficient evidence to support a charge that he was in constructive possession of the crack-cocaine found in the front bedroom of the residence. It is clear from the record that the crack-cocaine was not found on Henry's person, nor was it contained in any place over which Henry had exclusive control. Therefore if Henry is to be said to be in possession of the crack-cocaine, the State had to prove Henry (1) knew the controlled substance was present and (2) had the right and ability to exercise dominion or control over it as the same may not be inferred where the contraband is discovered in a place over which Henry lacked exclusive control. Fullenwieder v. State, 674 N.W.2d 73, 77-78 (Iowa 2004), relying on State v. Reeves, 209 N.W.2d 18, 21 (Iowa 1973).
We believe the State has adequately proved Henry's knowledge of the presence and nature of the controlled substance as the crack-cocaine and various accoutrements involved with its sale were discovered in plain view in the bedroom where Henry and Jataun Walker were found at the time the warrant was executed. State v. Horton, 625 N.W.2d 362, 366 (Iowa 2001); State v. Nickens, 644 N.W.2d 38, 43 (Iowa Ct.App. 2002). This is especially true where the record indicates Henry was present in the front bedroom on a regular basis. However, close proximity alone does not serve to establish defendant's right to exercise dominion or control over the controlled substance. Fullenwieder, 674 N.W.2d at 78. Rather, the proof of control required to sustain a finding of constructive possession is supplied by incriminating statements made by the defendant, incriminating actions of the defendant upon the police's discovery of drugs among or near the defendant's personal belongings, the defendant's fingerprints on the packages containing drugs, and any other circumstances linking the defendant to the drugs.
State v. Cashen, 666 N.W.2d 566, 571 (Iowa 2003). The State concedes no fingerprints were lifted from the packaging of the crack-cocaine found in the bedroom. Henry made no incriminating statements linking him to the crack-cocaine, and no other witness attributed ownership of the contraband to him.
Henry's brief makes much of the fact that Davis was implicated by Jataun as the owner of the crack-cocaine, and of the fact the confidential informant positively identified Davis as the person who sold her crack-cocaine during the controlled buys. However, the mere fact that Davis was alleged to have possessed the crack-cocaine does not preclude a finding that Davis and Henry were in joint possession, especially when the evidence is viewed in the light most favorable to the State.
The record does establish that Henry paid monthly rent to Jessica Moeller for the right to stay at the residence. This evidence would support a finding that Henry was a resident of the home rather than a frequent visitor. While it has been held that a resident's proprietary rights in the home gives him a greater expectation of privacy in asserting Fourth Amendment rights than does a mere visitor, Minnesota v. Carter, 525 U.S. 83, 91, 119 S. Ct. 469, 474, 142 L. Ed. 2d 373, 381 (1998), such proprietary rights give rise to a reasonable inference of the resident's greater right to be in and exercise control over items within the residence than would be afforded a mere guest. While Jessica testified Henry would stay in the living room when he spent the night, there is strong evidence a male exercised joint control over the bedroom closet based on the abundance of male clothing hanging in the closet. Additionally, a medallion that at least once belonged to Henry was found in the top drawer of the dresser upon which the drugs were found, and Henry was present in the very same bedroom where the medallion and the contraband were found at the time law enforcement officers executed the warrant. Each of these individual factors suggests a nexus between Henry and the crack-cocaine, and when taken together, they ultimately suggest Henry jointly possessed the closet and its contents.
Henry urges us to find these circumstances equivalent to those presented in Fullenweider, where the close proximity of defendant's cell phone to drugs found in plain view was insufficient to support a finding the defendant controlled the drugs. Fullenweider, 674 N.W.2d at 78. There, however, surveillance showed defendant was only a frequent visitor to the apartment complex and could not be accorded the same right of access and control within the apartment as one who pays rent. Id. Further, additional incriminating circumstantial evidence here was conspicuously absent in Fullenweider, namely (1) the large amount of cash found on Henry's person, and (2) Henry's attempted flight through the bedroom window upon being confronted by police. Although Henry contended the $490 found on his person constituted proceeds from the sale of a vehicle sold, when viewed in the light most favorable to the State, the cash is probative of both drug possession for which Henry was convicted and the intent to deliver charge for which he was ultimately acquitted. See United States v. Brett, 872 F.2d 1365, 1370 (8th Cir. 1989) (finding the presence of a large sum of cash in connection with other evidence of drug trading to be probative of participation in drug transactions). Henry's flight, which he claimed was prompted only by the fact he was in possession of a small amount of marijuana at the time the warrant was executed, when viewed in the light most favorable to the State tends to prove Henry attempted to avoid being linked to the cash and crack-cocaine he knew were located in the bedroom.
We conclude the record reveals sufficient evidence from which the jury could find Henry both knew of the crack-cocaine and exercised joint control over it. Having so found, we affirm Henry's conviction and sentence.
B. Ineffective Assistance.
We next address Henry's claim that his trial counsel provided ineffective assistance in failing to move for a new trial based on the weight of the evidence. In order to prevail on his ineffectiveness claims, Henry must demonstrate trial counsel's failure to perform an essential duty resulted in prejudice. State v. Miller, 590 N.W.2d 724, 725 (Iowa 1999). A motion for new trial may be granted where the district court concludes the greater weight of the credible evidence lies against the verdict. State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1997). Because we conclude the record contains evidence permitting the jury to find Henry guilty of simple possession beyond a reasonable doubt, Casady, 597 N.W.2d at 804, it is virtually impossible to conceive the district court could have (1) found the weight of the evidence preponderated heavily against the verdict and (2) exercised its discretion to order a new trial. We therefore conclude Henry was not prejudiced by trial counsel's failure to file a motion for new trial.
Having presided over Henry's trial, the district court made the following comment at sentencing: "I recognize that the jury convicted you of lesser crimes; however, facts in this case would clearly justify finding that you were dealing dangerous drugs out of that house." This comment provides us with ample justification for concluding the district court would not have employed its discretion to order a new trial on the simple possession charge based on the weight of evidence.
Henry next contends he was prejudiced by trial counsel's failure to object, on relevance grounds, to the association between Henry and a gang called the Peace Stones. Henry now urges this failure constitutes a breach of an essential duty and denied him a fair trial. During the trial the prosecutor asked Jataun Walker about possible links between Henry and the Chicago-based gang that "farms out" members to rural communities to set up drug-dealing operations. Jataun, however, did not name Henry as a member of a gang, but did indicate Davis' involvement. We acknowledge the high degree of prejudice such an association could potentially generate in a juror's mind where the remaining evidence supporting guilt is relatively weak. However as we have indicated above, evidence supporting Henry's constructive possession is substantial. The State raises a number of persuasive arguments as to why no prejudice flowed from the State's introduction of gang-related evidence. First, evidence of gang involvement is suggestive of conspiracy, and is relevant in establishing the felony delivery charges initially leveled against Henry, for which he was not yet acquitted when the evidence was offered. Had a relevance objection been made at that time, we find it less than likely the district court would have sustained it. The State also points to the fact the questioning actually tended to draw suspicion away from Henry as the seller in the controlled buys, and shift that suspicion to Davis who was directly linked by the evidence to a gang. This raises the prospect that trial counsel's failure to object might have been a purposeful trial strategy rather than a breach of duty. Regardless of whether the failure to object constituted a breach of an essential duty, however, we find no prejudice resulted because we are not persuaded there is a reasonable probability that the evidence linking Davis to a gang produced a different result than would have been achieved without such evidence.
Finding ample record evidence on which to assess counsel's effectiveness, we conclude Henry's claims are without merit. Allen, 348 N.W.2d at 248.