Opinion
No. 6-058 / 04-1739
Filed March 29, 2006
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.
Defendant appeals his convictions for possession of crack cocaine with intent to deliver, possession of marijuana, and conspiracy to deliver crack cocaine. AFFIRMED.
Linda Del Gallo, State Appellate Defender and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, John P. Sarcone, County Attorney, and Steven Bayens, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Vogel and Mahan, JJ.
Defendant-appellant, Kenny Eugene Smart, Jr., was stopped by police while driving with a passenger. During the course of the stop, police observed a plastic baggie containing a white substance. After examining the baggie, police concluded the substance was crack cocaine. A full search of the vehicle was conducted and police also found a loaded handgun under the driver's seat and marijuana in the glove compartment. Defendant and the passenger were arrested. Defendant was subsequently convicted of possession of crack cocaine with intent to deliver, possession of marijuana, and conspiracy to deliver crack cocaine. Defendant appeals arguing (1) there was insufficient evidence to establish the elements of the offenses, (2) ineffective assistance of trial counsel, (3) the district court abused its discretion in imposing consecutive sentences, and (4) the district court erred by adjudging defendant guilty of both the substantive offense of possession with intent to deliver crack cocaine and conspiracy with intent to deliver crack cocaine. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
In the early morning hours of October 1, 2003, defendant was stopped by Des Moines Police Officer Chad Nicolino while he was driving. Defendant was the driver of the vehicle and Jamon Winfrey was in the front passenger seat. Officer Nicolino described defendant as being "a little more nervous than the regular person. . . . [H]e seemed to be nervous, kept moving around in his seat a little bit, fidgety, had trouble completing his sentences, just kind of made myself feel a little uneasy." Defendant produced his identification, car registration, and proof of insurance. Officer Nicolino could not recall from where defendant retrieved those items.
Officers Wellman and Newman arrived at the scene to assist Officer Nicolino. Officer Nicolino ordered defendant to exit the vehicle, which he did. There was some confusion at trial as to whether Officer Wellman or Officer Newman removed Winfrey from the vehicle; regardless, Winfrey was removed. Both Officer Wellman and Officer Newman testified that they observed a plastic baggie containing an unknown white substance in a cup holder in the console between the two front bucket seats. Officer Nicolino was informed of the presence of the baggie and he returned to the vehicle and retrieved the bag, which contained eight individually wrapped rocks of crack cocaine. A complete search of the vehicle was then conducted. A baggie containing less than five grams of marijuana was found in the glove compartment and a loaded handgun was found underneath the driver's seat. After Officer Wellman informed Officer Nicolino of the discovery of the handgun, the defendant immediately stated that the gun was his. Additionally, the search revealed that defendant possessed $1,000, primarily in smaller denominations and that Winfrey possessed $790, primarily in smaller denominations.
By trial information, defendant was charged with (1) possession of crack cocaine with intent to deliver while in immediate possession or control of a firearm, in violation of Iowa Code sections 124.401(1)(c)(3) and 124.401(1)(e) (2003); (2) possession of marijuana, in violation of section 124.401(5); and (3) conspiracy to deliver crack cocaine while in immediate possession or control of a firearm, in violation of sections 124.401(1)(c)(3) and 124.401(1)(e). A jury convicted defendant on all three counts. Additionally, defendant was convicted as a habitual offender. The sentences for the two crack cocaine-related offenses were merged and defendant was sentenced to a prison term not to exceed thirty years. On the marijuana conviction defendant was sentenced to a prison term not to exceed fifteen years. The sentences were ordered to run consecutively.
On appeal defendant argues (1) the record contains insufficient facts to support his convictions, (2) his trial counsel provided ineffective assistance, (3) the district court abused its discretion in imposing consecutive sentences, and (4) the trial court erred by failing to properly merge the crack cocaine related convictions.
II. DISCUSSION.
A. Sufficiency of the Evidence.
Sufficiency-of-the-evidence claims are reviewed for correction of errors of law. State v. Henderson, 696 N.W.2d 5, 7 (Iowa 2005). We uphold the verdict if there is substantial evidence to support it. Id. "Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt." State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005). We consider all evidence, both that which detracts from the verdict as well as that which supports the verdict. Id. However, we view the "evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the record evidence." Id.
Defendant's first claim of insufficient evidence relates to the element of constructive possession. The crimes for which defendant was convicted require proof of "possession." See Iowa Code § 124.401(1), (5). To prove unlawful possession of a controlled substance, the State has the burden of proving that defendant (1) exercised dominion and control over the contraband, (2) had knowledge of its presence, and (3) had knowledge that the material was a controlled substance. Henderson, 696 N.W.2d at 8. Proof of opportunity of access to the place where contraband was found will not, without more, support a finding of unlawful possession. State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003). Because the contraband was not found on defendant's person (in his actual possession), the State must prove defendant constructively possessed the contraband. Henderson, 696 N.W.2d at 9.
"The existence of constructive possession turns on the peculiar facts of each case." State v. Webb, 648 N.W.2d 72, 79 (Iowa 2002). Nevertheless, a number of inferences may be used to prove constructive possession. See id. at 76-79. One such inference is if the place where the contraband is found is in the exclusive possession of the accused, knowledge of the contraband's presence coupled with the ability to maintain control over the contraband may be inferred. Here, this inference is of no assistance to the State. Id. Defendant's possession of the vehicle, where the drugs were found, was clearly not exclusive because he was traveling with Winfrey at the time he was stopped.
Where exclusive possession cannot be demonstrated, a number of other factors may be applied to assist in determining whether the accused had constructive possession of the contraband. These factors include (1) incriminating statements made by the accused, (2) incriminating actions of the accused upon the police's discovery of a controlled substance among or near the personal belongings of the accused, (3) the fingerprints of the accused on the packages containing the controlled substance, and (4) any other circumstances linking the accused to the controlled substance. Carter, 696 N.W.2d at 39 (citing Webb, 648 N.W.2d at 79). In addition, when contraband is found in a motor vehicle we may further consider (1) whether the contraband was in plain view, (2) whether it was with the personal effects of the accused, (3) whether it was found on the same side of the car seat as the accused or immediately next to him, (4) whether the accused owned the vehicle, and (5) whether there was suspicious activity by the accused. Carter, 696 N.W.2d at 39 (citing State v. Kemp, 688 N.W.2d 785, 789 (Iowa 2004)).
We first address whether there was substantial evidence to prove beyond a reasonable doubt defendant had constructive possession of the crack cocaine found in the center console of the vehicle. Defendant argues the evidence was insufficient because it was questionable whether the crack cocaine was really in plain view, as defendant was removed from the car before Winfrey, and Winfrey may have dropped the drugs in the console after defendant exited the vehicle. There was no evidence the drugs were found with defendant's personal effects. The drugs in the center console were equally close to defendant and the passenger. Defendant cooperated with police. Winfrey was the one who acted suspiciously, as he swallowed some crack cocaine.
It was not immediately known at the time of the stop that Winfrey swallowed drugs. In the morning after his arrest, Winfrey was rushed to the hospital where crack cocaine and pieces of plastic baggies were removed from his stomach.
On the other hand, defendant was the owner and the driver of the vehicle. Additionally, Officer Nicolino testified defendant was nervous and fidgety and had trouble completing his sentences. The crack cocaine was found in the center console, which was within defendant's reach and within his plain view. Furthermore, defendant kept a loaded handgun underneath his seat and had $1000 with him that was largely in small denominations, which expert testimony indicated was consistent with drug dealing. Finally, defendant set forth his theory that Winfrey may have placed the drugs in the center console after defendant was removed from vehicle at trial and the jury rejected it. Viewing all of the evidence in the light most favorable to the State there was sufficient evidence to support the conviction.
We next address whether there was substantial evidence to prove beyond a reasonable doubt that defendant had constructive possession of the marijuana found in the glove compartment. Defendant argues that there was not sufficient evidence to show that he constructively possessed the marijuana because the marijuana was found in the glove compartment, which was physically closer to Winfrey, and the State did not present evidence that personal effects of defendant's were also found in the glove compartment.
However, the State argues that many of the same factors relating to defendant's constructive possession of the crack cocaine also favor concluding that defendant constructively possessed the marijuana. Defendant was the owner and the driver of the vehicle, testimony indicated that defendant was nervous and fidgety when pulled over, defendant admitted to owning the loaded handgun found underneath his seat, and defendant had $1000 of small denomination bills with him. Furthermore, the State argues the fact the marijuana was in the glove compartment supports constructive possession because the glove compartment of the car is an area that would not ordinarily be used by a guest. Henderson, 696 N.W.2d at 9. Viewing all of the evidence in the light most favorable to the State there was sufficient evidence to support the conviction.
Defendant also challenges that there is insufficient evidence in the record to convict him of conspiracy to deliver crack cocaine. To prove the conspiracy element, the State had to prove beyond a reasonable doubt that (1) defendant agreed with another to commit, or attempt to commit, the crime of delivery of crack cocaine, (2) the agreement was entered into with the intent to promote or facilitate the delivery of crack cocaine, and (3) one or both of the two men committed an overt act. State v. Corsi , 686 N.W.2d 215, 218-19 (Iowa 2004).
Defendant alleges there was insufficient evidence of an agreement. In order to prove an agreement existed, both direct and circumstantial evidence may be used. State v. Speicher , 625 N.W.2d 738, 742 (Iowa 2001). Circumstantial evidence may include "the declarations and conduct of the alleged conspirators and all reasonable inferences arising from such evidence." Id. An agreement does not need to be formal and express. Id. "A tacit understanding — one inherent in and inferred from the circumstances — is sufficient to sustain a conspiracy conviction." Id.
The State argues that the following facts are sufficient to satisfy the conspiracy element: defendant was within the small, confined space of a car with eight rocks of crack cocaine in plain view in the cup holder between the driver's and passenger's seats; the crack cocaine was individually wrapped in small increments; defendant had a loaded handgun under his seat; defendant and the passenger both carried a substantial amount of cash, which was primarily in small denominations; it is common for drug dealers to work in pairs; and Winfrey swallowed drugs upon being stopped by police, indicating an intent to destroy evidence. Viewing all of the evidence in the light most favorable to the State there was sufficient evidence to support the conviction.
B. Ineffective Assistance of Trial Counsel.
Defendant next argues trial counsel provided ineffective assistance. Because a claim of ineffective assistance of counsel implicates constitutional rights, our review is de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999). To establish an ineffective assistance of counsel claim, the defendant must show (1) counsel failed to perform an essential duty, and (2) this failure resulted in prejudice. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999); State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984).
Ineffective assistance claims are generally reserved for postconviction relief actions; however, we will resolve them on a direct appeal of the criminal conviction in two situations:
If the record on appeal shows . . . that the defendant cannot prevail on such a claim as a matter of law, we will affirm the defendant's conviction without preserving the ineffective-assistance-of-counsel claims. Conversely, if the record on appeal establishes both elements of an ineffective-assistance claim and an evidentiary hearing would not alter this conclusion, we will reverse the defendant's conviction and remand for a new trial.
State v. Martinez, 679 N.W.2d 620, 625-26 (Iowa 2004) (citations and quotation marks omitted).
The defendant must show his attorney's performance fell below an objective standard of reasonableness so that the attorney 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). A strong presumption exists that counsel's performance falls within the wide range of reasonable professional assistance. Wemark, 602 N.W.2d at 814. The defendant has the burden of proving by a preponderance of the evidence both prongs of a claim of ineffective assistance. State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996); Brewer v. State, 444 N.W.2d 77, 83 (Iowa 1989). "Because proof of both prongs of this test is required should [a defendant] fail to prove prejudice we need not consider whether trial counsel failed to perform an essential duty." State v. Tejada, 677 N.W.2d 744, 754 (Iowa 2004). Counsel is not ineffective for failing to pursue a meritless issue. State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003) (citing State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999)).
Defendant first claims his trial counsel was ineffective for failing to object to testimony of Officer Hickey, when he stated, "My opinion would be that both those individuals [defendant and his passenger] were dealing crack cocaine." We do not allow expert witnesses to testify as to the ultimate fact of defendant's guilt or innocence. State v. Dinkins , 553 N.W.2d 339, 342 (Iowa Ct.App. 1996); State v. Vesey , 482 N.W.2d 165, 167 (Iowa Ct.App. 1991). "On the other hand, an expert witness is permitted to express an opinion as to whether the facts of the case fit the profile of `a person who sells drugs.'" Dinkins , 553 N.W.2d at 342 (quoting State v. Olsen, 315 N.W.2d 1, 7 (Iowa 1982)). The State concedes Officer Hickey improperly expressed an opinion as to the ultimate fact of the accused's guilt or innocence. The statement of Officer Hickey went beyond an opinion as to whether the facts of the case fit the profile of a drug dealer, as Officer Hickey specifically opined that defendant was dealing crack cocaine. If a proper objection had been made, the opinion evidence should not have been admitted. However, in order to prevail on this issue defendant must show that his trial counsel was ineffective in failing to object to the evidence. Vesey , 482 N.W.2d at 168. Defendant must prove by a preponderance of the evidence that prejudice resulted from his trial counsel's failure to object. Id. Defendant must show that if the evidence had been excluded there was a reasonable probability that he would have been acquitted.
We conclude defendant has not demonstrated that he was prejudiced. The record shows that Officer Hickey otherwise confined his testimony to discussing the general mode of operation of drug dealers, thus, the improper evidence was isolated. See State v. Olsen, 315 N.W.2d 1, 7 (Iowa 1982) (stating a witness can be asked for an opinion based upon certain evidence as it relates to a well-defined modus operandi). Additionally, the evidence was strong such that it is not reasonably probable defendant would have been acquitted in the absence of the challenged evidence. See Vesey, 482 N.W.2d at 168.
Defendant next contends his trial counsel was ineffective for failing to object to remarks made by the prosecutor in closing argument. The prosecutor began closing argument by stating:
May it please the Court, counsel, ladies and gentlemen of the jury. Make no mistake, this man is a drug dealer, and on the night of October 1st, 2003, he, along with Jamon Winfrey, had all the tools of the trade. It's a fact. And when [defense counsel] first stood before you with regards to his opening statement, he said a lot of evidence that you will hear is uncontroverted. If you look at it, probably 95 percent of it is. It's uncontroverted.
The events of that early morning of October 1st, there's not much bone of contention. There's a few small maybe squabble here or there, but other than that, I think we're all pretty clear as to what happened. And when you review all those uncontroverted facts you'll come to the same conclusion that I just stated, that Mr. Smart is, in fact, a drug dealer.
Citing State v. Graves, 668 N.W.2d 860, 874 (Iowa 2003), defendant summarily argues that the "prosecutor should not express his or her personal beliefs and may not vouch personally as to a defendant's guilt." This argument mischaracterizes Graves, as Graves was focused on whether a prosecutor could express a belief the defendant lied or was a liar. See Graves, 668 N.W.2d at 873-74. In the present case, there was no allegation defendant lied. Further, it does not appear from the record that the prosecutor was expressing improper personal beliefs, as his closing argument was intensely focused on a recitation of the evidence introduced during the trial. See id. ("A prosecutor is entitled to some latitude during closing argument in analyzing the evidence admitted in the trial [and] may argue the reasonable inferences and conclusions to be drawn from the evidence.") Trial counsel did not have a duty to object to the closing argument.
Defendant next complains his trial counsel was ineffective for failing to discover and present more evidence that the passenger in defendant's car swallowed crack cocaine on the night of the arrest. Defendant argues his trial counsel should have discovered and introduced evidence that was later submitted as an exhibit with defendant's post-trial motions by the attorney defendant obtained after the trial. That exhibit indicated Winfrey was hospitalized hours after his arrest for acute cocaine ingestion. Fragments of crack cocaine and pieces of plastic baggie were recovered from Winfrey's stomach. Winfrey admitted to swallowing the cocaine to avoid police discovery.
However, defendant's trial counsel did elicit testimony at trial, during cross-examination of Officer Hickey, that Winfrey had swallowed crack cocaine on the night of the arrest. Additionally, during closing argument defendant's trial counsel argued the importance of Winfrey's swallowing of the crack cocaine. Trial counsel did not fail in an essential duty.
Defendant's final claim of ineffective assistance is that trial counsel failed to object to improper evidence of prior crimes committed by defendant. Specifically, Officer Nicolino testified that defendant had a suspended license. While admission of this evidence may have been improper, as the prosecutor and defense counsel had previously agreed not to discuss the reason for which defendant was initially stopped, it was not prejudicial evidence. This is not the type of evidence that would rouse the jury or provoke its instinct to punish. State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988).
C. Consecutive Sentences.
Defendant argues the district court abused its discretion in imposing consecutive sentences. We may address challenges to the legality of a sentence for the first time on appeal. State v. Dann, 591 N.W.2d 635, 637 (Iowa 1999); see also State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct.App. 1994). We review sentencing for correction of errors at law. Iowa R. App. P. 6.4; State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998). Where a challenged sentence does not fall outside statutory limits, we review the trial court's decision for abuse of discretion; reversal on this ground is warranted only if the court's discretion has been exercised "on grounds or for reasons clearly untenable or to an extent clearly unreasonable." State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). The district court must "state on the record its reason for selecting the particular sentence." Iowa R. Crim. P. 2.23(3)( d). The district court must provide specific reasoning regarding why consecutive sentences are warranted in the particular case. State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000). "Although the reasons do not need to be detailed, they must be sufficient to allow appellate review of the discretionary action" of imposing consecutive sentences. Id. The reasons, however, are not required to be specifically tied to the imposition of consecutive sentences, but may be found from the particular reasons expressed for the overall sentencing plan. State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989). Thus, we look to all parts of the record to find the supporting reasons. Id.
Certain factors are to be considered by the district court in exercising its sentencing discretion. In exercising its discretion, "the district court is to weigh all pertinent matters in determining a proper sentence, including the nature of the offense, the attending circumstances, the defendant's age, character, and propensities or chances for reform." State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995) (quoting State v. Johnson, 513 N.W.2d 717, 719 (Iowa 1994)).
At the sentencing hearing the district court stated that it chose the sentence defendant received because of the need to protect the public from further offenses, the defendant's criminal record, the circumstances of the offense, probation would lessen the seriousness of the offenses, the need to rehabilitate defendant, defendant's age, and the fact that there were separate offenses that deserved to be punished separately. The district court properly exercised its discretion in sentencing defendant. See Jacobs, 607 N.W.2d at 690.
D. Merger of Convictions.
Finally, defendant argues the district court erred when it adjudged defendant guilty of both the public offense of possession of a controlled substance with intent to deliver and conspiracy to deliver a controlled substance. Particularly, defendant contends the following statement found in the district court's sentencing order was improper:
It is the judgment of the court that the defendant is adjudged guilty of Count I — Possession of a Controlled Substance with Intent to Deliver (Crack Cocaine) in violation of Iowa Code section 124.401(1)(c)(3); . . . and Count III — Conspiracy to Deliver a Controlled Substance, in violation of Iowa Code section 124.401(1)(c)(3).
Iowa Code section 706.4 states:
A conspiracy to commit a public offense is an offense separate and distinct from any public offense which might be committed pursuant to such conspiracy. A person may not be convicted and sentenced for both the conspiracy and for the public offense.
The count of conspiracy to deliver was not a wholly new and different offense from the count of possession with intent deliver. State v. Maghee , 573 N.W.2d 1, 7 (Iowa 1997). "[T]he conspiracy count was an alternative means of violating" Iowa Code section 124.401(1)(c)(3). Id. In such instances our supreme court has spoken as to how sentencing should be handled in light of Iowa Code section 706.4. State v. Waterbury, 307 N.W.2d 45, 52 (Iowa 1981). The State need not elect which conviction, the public offense or the conspiracy count, it wants recorded. Id.
We interpret "the last sentence [of section 706.4] as merely creating a merger of the conspiracy and the substantive offense where the defendant has been found guilty of both offenses. Thus the defendant should be sentenced solely on the substantive offense." Id. (emphasis added).
In light of Waterbury, the district court appropriately adjudged defendant's guilt and sentenced him. The district court stated defendant "shall be imprisoned for a period not to exceed 15 years on Count I III, which are merged into a single sentence . . ." (Emphasis added.) Thus, defendant was sentenced solely on one of the offenses.