Opinion
No. 4-310 / 03-0975.
July 28, 2004.
Appeal from the Iowa District Court for Dubuque County, Lawrence H. Fautsch and Alan L. Pearson, Judges.
The defendant appeals the judgment and sentence entered upon his conviction for possession of marijuana. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, Fred H. Mccaw, County Attorney, and Timothy Gallagher, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Brian Pottebaum appeals the judgment and sentence entered upon his conviction for possession of marijuana, in violation of Iowa Code section 124.401(d) (2001). We affirm.
I. Background Facts and Proceedings.
Pottebaum, who was employed as a traveling disc jockey for Scorpio Productions of Dubuque, was arrested for operating while intoxicated and non-payment of child support while working in Wisconsin. At the time, he had been traveling in a company van. After his arrest, Pottebaum called Scorpio owner William Finn and assistant manager Robert Preston to report his arrest and request a loan for bail money. He informed both that he had something of value in this car, which had been left in Dubuque at the Scorpio Production parking lot and which he could sell immediately to repay them.
Preston traveled to Wisconsin to retrieve the company van and at Pottebaum's request took possession of Pottebaum's car keys. However, Pottebaum warned Preston not to let anyone use or touch the car. After returning to Iowa, Preston, prompted by past suspicions of Pottebaum's drug use and his current misgivings about what the car contained, contacted police. A Dubuque police officer then brought a drug-sniffing dog and inspected the exterior of Pottebaum's car. The dog alerted on the trunk area. Using keys supplied by Preston, the officer opened and searched the car where he found a blue bag under the front passenger seat containing twelve individually wrapped baggies of marijuana.
Based on this discovery, the State charged Pottebaum with possession of marijuana. The district court denied his motion to suppress the drug evidence. Following a trial, the jury found him guilty as charged and the court sentenced him to a term of incarceration of five years, which it suspended. Pottebaum appeals, asserting counsel provided ineffective assistance in several respects.
Ineffective Assistance of Counsel.
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). While we generally preserve such claims for postconviction relief proceedings, we will consider them on direct appeal when the record is adequate to address the issue. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).
To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998). In proving the first prong, the defendant faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second prong is satisfied if a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Davis v. State, 520 N .W.2d 319, 321 (Iowa Ct.App. 1994).
Motion to Suppress.
Pottebaum first maintains counsel was ineffective in failing to file a timely motion to suppress the evidence seized following the search of his vehicle. We note that, while it is true the motion to suppress was not filed within the applicable time frame, see Iowa R. Crim. P. 2.11(4), the district court did hold a hearing on the matter and ruled on it. Therefore, Pottebaum can show no prejudice in counsel's late filing.
Pottebaum further argues the merits of the motion to suppress alleging:
(1) the drug dog's actions are not sufficient to supply probable cause and (2) the officers were not confronted with "exigent circumstances" to search the car. We disagree on both accounts. First, in State v. Bergman our supreme court concluded that when a dog was alerted by smelling the presence of narcotics, this provided police with probable cause to search the vehicle in question.
Bergman, 633 N.W.2d 328, 338 (Iowa 2001). Second, although Pottebaum was out of state and clearly not himself able to abscond with his vehicle, the officer who searched the car testified police had no knowledge as to who may be coming to move the vehicle. He also testified it was not possible to guarantee that an officer would be available to simply stand guard by the vehicle until a warrant could be procured. In State v. Cain, our supreme court affirmed that "the exigency requirement is always satisfied by a vehicle's inherent mobility." Cain, 400 N.W.2d 582, 586 (Iowa 1987). We therefore conclude the district court was correct in reasoning the vehicle was "fully mobile" and "capable of being driven away". We find no error in the denial of Pottebaum's motion to suppress.
Motion for Judgment of Acquittal.
Pottebaum next asserts counsel's "failure to properly articulate a motion for judgment of acquittal" constituted ineffective assistance. In particular, he contends counsel failed to urge that there was no proof he knew marijuana was in the car or that he was ever in either actual or constructive possession of it. Further, he contends he was improperly convicted based on an uncorroborated admission. A claim of ineffective assistance of trial counsel based on the failure of counsel to raise a claim of insufficient evidence to support a conviction is a matter that normally can be decided on direct appeal. State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004) (citing State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003)). Thus we proceed to address this particular claim of ineffective assistance on direct appeal.
We will uphold the jury's verdict if there is substantial evidence to support it. State v. Yeo, 659 N.W.2d 544, 547 (Iowa 2003). Evidence is substantial if it would convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt. Id. We review the record in the "light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the evidence in the record." State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002). "The evidence must raise a fair inference of guilt and do more than create speculation, suspicion, or conjecture." Id.
This issue necessitates reviewing the legal concept of possession, which can be either actual or constructive. State v. Maghee, 573 N.W.2d 1, 10 (Iowa 1997). A defendant has actual possession of the drugs if he or she has "direct physical control" over the same. Id. Possession is constructive where the defendant has knowledge of the presence of the drugs "and has the authority or right to maintain control of [them]." Id. (citation omitted). Here, Pottebaum did not have actual possession of the marijuana as he was in Wisconsin and the car was in Dubuque when it was searched and the marijuana was found. Under these circumstances, the possession to be found, if any, must be constructive.
In determining whether a defendant had constructive possession, we may consider a number of factors. See State v. Cashen, 666 N.W.2d 566, 571 (Iowa 2003). These factors may include such things as 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. Id. In sum, we are still required to determine whether all of the facts and circumstances, including those not listed above, allow a reasonable inference that the defendant knew of the drugs' presence and had control and dominion over the contraband. Id.
Thus, the authority or right to maintain control includes something more than the "raw physical ability" to exercise control over the controlled substance. State v. Bash, 670 N.W.2d 135, 139 (Iowa 2003). The defendant must have some proprietary interest or an immediate right to control or reduce the controlled substance to the defendant's possession. Id.
With this analysis in mind, we now turn to the operative facts of this case. It is undisputed that Pottebaum owned the car in which the marijuana was found, and by his statements to Preston and Finn, it is not disputed Pottebaum himself left the car in the Scorpio Productions parking lot.
In addition, Pottebaum's statements to Preston and Finn are significant. He informed them both that he had something in his car he could immediately sell and pay them back with if either would loan him money for bail. Other than the marijuana, police located nothing of value in the vehicle, although there were some tools and a spare tire in the trunk. His pleas to both Preston and Finn, including his directive that Preston should allow no one to touch or use the car, could be construed as incriminating in nature. We conclude this evidence also tends to prove that Pottebaum held a "proprietary interest" in the items found in the car, rather than simply the "raw physical ability" to control it. His admissions acknowledging that something of value was in the car, in conjunction with (1) the fact he owned the car and had parked and locked it at the Scorpio Productions parking lot, and (2) the fact that other than the drugs nothing of value was in the car, is sufficient to establish dominion and control. Compare Cashen, 666 N.W.2d at 572 (finding significant that the defendant did not own the car in which the drugs were found).
Next, Pottebaum argues that because Preston had temporary possession of the car keys, this equates to him having "joint possession" of the car. On this issue of joint versus exclusive possession, our supreme court has stated:
If the premises on which such substances are found are in the exclusive possession of the accused, knowledge of their presence on such premises coupled with his ability to maintain control over such substances may be inferred. Although no further proof of knowledge by the State is required in cases of exclusive possession by the accused the inference of knowledge is rebuttable and not conclusive. But where the accused has not been in exclusive possession of the premises but only in joint possession, knowledge of the presence of the substances on the premises and the ability to maintain control over them by the accused will not be inferred but must be established by proof. Such proof may consist either of evidence establishing actual knowledge by the accused, or evidence of incriminating statements or circumstances from which a jury might lawfully infer knowledge by the accused of the presence of the substances on the premises.
State v. McDowell, 622 N.W.2d 305, 308 (Iowa 2001) (quoting State v. Reeves, 209 N.W.2d 18, 23 (1973)).
Here, the record is devoid of evidence that Preston was anywhere near the vehicle while he temporarily held the keys. Nor is there any evidence in the record from which an inference could be drawn that Preston used the keys to open the vehicle. Preston responded "no" when asked whether he had "any contact at all with the Defendant's red vehicle." When asked by the prosecutor whether he let anybody touch the car or take it, he responded "No, I did not, not until the Dubuque Police Department asked me for the keys." Finally, when asked about the time frame between when he reported the suspicious car to the police department and the time at which officers arrived at the parking lot, he responded: "Within moments from the time that I left the police department until they arrived."
We do not believe this evidence allows for an inference that anyone other than Pottebaum was in "joint possession" of the car. Preston only held the keys for a short time, and as noted the record contains no evidence that during that time Preston entered or was even near the car. Because the evidence only supports that Pottebaum was in "exclusive possession" of the car, it was reasonable for the jury to infer his knowledge of and ability to maintain and control over the substances found in the car in reaching the verdict.
Accordingly, we conclude the evidence is sufficient to support the conviction for possession of marijuana. Thus, counsel did not provide ineffective assistance in failing to more specifically challenge the sufficiency of the evidence of knowledge and possession of the drugs.
We next briefly address Pottebaum's contention he was improperly convicted based on an uncorroborated confession. See Iowa R. Crim. P. 2.21(4). Assuming, without deciding that his statements relating that there was something of value in the car amounted to a "confession," we conclude a motion for judgment of acquittal based on a lack of corroboration would have been meritless. State v. Smothers, 590 N.W.2d 721, 724 (Iowa 1999) (noting counsel is not ineffective for failing to raise meritless issues or to make questionable or meritless objections). Sufficient evidence as set forth above existed to corroborate any confession.
Prior Bad Acts.
At trial, Robert Preston testified that the reason he contacted the police department was because "Brian Pottebaum is known to partake in the use of marijuana." Pottebaum's counsel lodged an immediate objection, urging among other things that the testimony was prejudicial. The court sustained the objection and instructed the jury to disregard the answer. However, the court did allow the State to later elicit testimony from Preston that he had personally witnessed Pottebaum smoke marijuana and that this was a factor in his decision to contact police with his suspicions. In addition, Preston later testified that he was concerned Pottebaum's actions were giving Scorpio Productions a "bad reputation." Defense counsel objected to this testimony as well, arguing the statement was an improper blanket opinion statement. Again, the court sustained this objection.
On appeal, Pottebaum maintains although counsel did lodge an objection "it was not made prior to the testimony given, and was not later re-urged". In light of the fact defense counsel did, in fact, object to the testimony we fail to understand how counsel's performance was in any way deficient. As the State properly urges, certainly, counsel could not have predicted the necessity of objection prior to this statement. Because of counsel's objection, on appropriate grounds, immediately following the allegedly improper testimony, we cannot say counsel's "performance fell below an objective standard of reasonableness so that counsel failed to fulfill the role in the adversary process that the Sixth Amendment envisions." Strickland v. Washington, 466 U.S. 668, 688 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
Pottebaum does not argue that the district court abused its discretion in admitting the testimony that Preston personally witnessed Pottebaum smoke marijuana.
Jury Instruction.
Pottebaum finally contends counsel was ineffective in failing to object to Instruction 11, which stated: "You must determine the defendant's guilt or innocence from evidence and the law in these instructions." He asserts the instruction's use of the term "innocence" placed an unconstitutional burden on him. This particular contention has been rejected by our supreme court in State v. Langlet, 283 N.W.2d 330, 337 (Iowa 1979). Accordingly, counsel breached no duty in failing to raise this meritless issue. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
AFFIRMED.