Opinion
No. 2-585 / 01-1655
Filed January 29, 2003
Appeal from the Iowa District Court for Black Hawk County, Nathan A. Callahan, Judge.
Ross Ian Cashen appeals his conviction, following jury trial, for possession of marijuana, in violation of Iowa Code section 124.401(5) (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, Thomas Ferguson, County Attorney, and Randall Jackson, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
Ross Ian Cashen appeals his conviction, following jury trial, for possession of marijuana in violation of Iowa Code section 124.401(5) (1999). He contends there was insufficient evidence to support the conviction and that his trial counsel was ineffective for failing to move for new trial. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
A Waterloo police officer stopped a vehicle for a traffic violation. There were six people in the vehicle at the time of the stop. The defendant, Ross Cashen, was a back seat passenger. Cashen's girlfriend at the time, Jessica Darragh, was sitting on his lap when the car was stopped. The officer asked everyone in the vehicle for identification and ran a check for possible warrants and to check the validity of the driver's license. One of the passengers did have an outstanding warrant. That passenger was arrested and everyone else was ordered out of the car.
Once out of the vehicle Cashen consented to being searched by the officer and the officer found a lighter and Zig-Zag cigarette rolling papers on him. Another officer searched Darragh and found cigarette rolling papers and a small baggie of marijuana seeds in her pants pocket. The driver of the vehicle gave consent for the officers to search the car and a baggie of marijuana was found wedged behind the rear seat on the side of the vehicle where Cashen and Darragh had been sitting. A bottle of vodka was also found on the floor in the back. No leaf tobacco or cigarettes were found on any of the passengers or in the vehicle itself. Cashen was arrested for possession of marijuana.
When questioned by the officer at the scene Cashen denied any knowledge of the baggie of marijuana. After being arrested and transported to the jail the officer entered the holding cell Cashen was in and again spoke with him. Cashen again denied any knowledge of the marijuana. The officer thereafter spoke with the other passengers. Cashen then motioned to the officer that he wished to speak to him again. The officer reentered Cashen's cell. Cashen asked the officer if anyone had "fessed up" to owning the marijuana. The officer told him no one had and asked Cashen if someone should have. Cashen said that Jessica Darragh should have because the marijuana was hers. Darragh did later claim the marijuana was hers.
The State filed a trial information charging Cashen with possession of marijuana in violation of Iowa Code section 124.401(5). Jury trial was held. At the close of the State's evidence Cashen moved for a "directed verdict" for lack of substantial evidence that the marijuana found in the vehicle was connected with him. The court reserved ruling on the motion until the jury had returned its verdict. The jury found Cashen guilty as charged and he then renewed his motion for directed verdict or judgment of acquittal. The court filed a written ruling denying Cashen's motion. The court sentenced Cashen to thirty days in jail (which was fully suspended), placed him on probation for twelve months, and assessed a fine of $250 plus surcharges and court costs.
Cashen appeals, alleging there was not sufficient evidence to support his conviction because the State failed to prove he had constructive possession of the marijuana. He also contends his trial counsel was ineffective for failing to move for a new trial based on the verdict being contrary to the weight of the evidence.
II. MERITS. A. Sufficiency of the Evidence.
Our scope of review and many of the standards of review that apply in sufficiency-of-the-evidence challenges are set forth in State v. Webb, 648 N.W.2d 72, 75-76 (Iowa 2002) and need not be repeated here. The following additional standards are applicable as well. Inherent in our standard of review of jury verdicts in criminal cases is the recognition that the jury was free to reject certain evidence, and credit other evidence. State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). A jury is free to believe or disbelieve any testimony as it chooses and to give as much weight to the evidence as, in its judgment, such evidence should receive. State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996); State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993). The very function of the jury is to sort out the evidence and place credibility where it belongs. Thornton, 498 N.W.2d at 673.
Cashen argues there was insufficient evidence to support his conviction for possession because the State failed to prove he was in constructive possession of the marijuana. Our supreme court has stated that constructive possession in narcotics cases is established by showing: (1) that the accused exercised dominion and control over the contraband, (2) that he had knowledge of its presence, and (3) that the accused had knowledge that the material was a narcotic. State v. Atkinson, 620 N.W.2d 1, 3 (Iowa 2000) (quoting State v. Reeves, 209 N.W.2d 18, 21 (Iowa 1973)). Where the accused has not been in exclusive possession of the premises on which the substance was found, as is the case here, "knowledge of the presence of the substances on the premises and the ability to maintain control over them by the accused" can be proven by either "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." Id. (emphasis added).
This is clearly a constructive possession case as actual possession requires the illegal substance be found on the defendant's person and that was not the case here. See State v. Atkinson, 620 N.W.2d 1, 3 (Iowa 2000) (citing State v. Rudd, 454 N.W.2d 570, 571 (Iowa 1990)).
We find there was sufficient evidence to prove Cashen's knowledge of the presence and nature of the marijuana. Although he initially denied any knowledge of the marijuana, Cashen later told the questioning officer that it was Darragh who should have "fessed up" to possession of the marijuana. This evidence was sufficient for a reasonable fact finder to find, beyond a reasonable doubt, Cashen had knowledge of the nature and presence of the marijuana found in the car.
The other element the State must prove to establish constructive possession, that Cashen exercised dominion and control over the marijuana, is a much closer question. In Atkinson, the supreme court adopted five factors to consider when contraband is found in a vehicle occupied by more than one person, they are: (1) was the contraband in plain view; (2) was it with defendant's personal effects; (3) was it found on the same side of the car seat as the defendant or immediately next to him, (4) was the defendant the owner of the vehicle; and (5) was there suspicious activity by the defendant. Id. at 4.
Applying these considerations to the evidence in the case at hand, the evidence is undisputed that the drugs were not in plain view, they were not with Cashen's personal effects, and he was not the owner of the car. It is equally clear that, unlike in Atkinson, the marijuana was found immediately next to Cashen and there was "suspicious activity" by Cashen, both in his questions and statements and in the property he possessed at the time of his arrest.
Cashen initially lied to the police about his knowledge of the marijuana, both at the scene and at the jail. Only when in the holding cell at the jail, while being questioned for the third time, and after asking the police if anyone else had admitted to having the marijuana and finding out no one had, did Cashen admit he knew about the marijuana, assert that it belonged to another, and identify the person to whom he claimed it belonged. "A false story told by a defendant to explain or deny a material fact against him is by itself an indication of guilt. . . ." State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993). The jury was entitled to consider the fact Cashen initially lied to the police in determining his guilt or innocence. State v. Leutfaimany, 585 N.W.2d 200, 206 (Iowa 1998); see also State v. Liggins, 524 N.W.2d 181, 188 (Iowa 1994) (finding inconsistent stories may be viewed as evidence of guilt); Cox, 500 N.W.2d at 25 (same); State v. Mayberry, 411 N.W.2d 677, 682 (Iowa 1987) (same).
Additionally, Zig-Zag rolling papers and a lighter were found on Cashen by the arresting officer. The trial court recognized these items as being commonly associated with smoking marijuana. Furthermore, no leaf tobacco or cigarettes of any kind for which he may have used the rolling papers and lighter were found on Cashen, any of the other passengers, or anywhere in the vehicle. The jury was free to consider this evidence as well in determining Cashen's guilt or innocence. Both Cashen's inconsistent statements to the police and the items in his possession at the time of his arrest constitute evidence from which a jury might reasonably infer Cashen exercised dominion and control over the marijuana found immediately adjacent to him in the car.
We also note that the facts in this case are distinguishable from those in Atkinson in several ways. First and foremost, here the contraband was found on the same side of the car as Cashen and immediately next to him, whereas in Atkinson it was not on the same side of the car as the defendant. Atkinson, 620 N.W.2d at 4. Second, in Atkinson the "suspicious activity" argued by the State was found to be "based on pure speculation" and rejected by the supreme court as evidence of dominion and control. Id. at 5. Here, Cashen's inconsistent statements regarding his knowledge of the presence and nature of marijuana, the fact he initially lied to the police, and the arguably incriminating evidence found on his person, were undisputed facts established at trial and were not based on "pure speculation." Finally, the narcotics found in Atkinson were found within another person's "fanny pack" and thus were clearly tied to a person other than the defendant. Id. at 2. Here, the marijuana was found wedged behind the vehicle's back seat, not within any other container or another person's personal effects. Thus, unlike in Atkinson, there was no evidence here clearly tying the drugs to someone other than Cashen.
Based on all of the evidence set forth above and viewing the facts in the light most favorable to the State, we find there is substantial evidence upon which a rational fact finder could find Cashen guilty of constructive possession. Accordingly, we must uphold the jury's verdict.
B. Ineffective Assistance of Counsel
When there is an alleged denial of constitutional rights, such as ineffective assistance of counsel, we review the totality of the circumstances in the record de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). While we often preserve ineffective assistance claims for postconviction proceedings, we consider such claims on direct appeal if the record is sufficient. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). Neither party here asserts the record is insufficient, we find it to be adequate, and we address the claims.
The standards required for a defendant to prevail on a claim of ineffective assistance of counsel are well established and need not be repeated here. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 141-44 (Iowa 2001). Cashen contends his trial counsel was ineffective for failing to make a motion for new trial based on the fact the verdict was contrary to the weight of the evidence.
Iowa Rule of Criminal Procedure 2.24(2)( b)(6) provides that the court may grant a new trial when the verdict is contrary to law or the evidence. Our supreme court has interpreted "contrary to . . . the evidence" as meaning "contrary to the weight of the evidence." State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). "The `weight of the evidence' refers to `a determination [by] the trier of fact that a greater amount of credible evidence supports one side of an issue or cause than the other'." Id. at 658 (quoting Tibbs v. Florida, 457 U.S. 31, 37-38, 1025 S.Ct. 2211, 2216, 72 L.Ed.2d 652, 658 (1982)). A motion for judgment of acquittal, on the other hand, is to be granted whenever "the evidence is insufficient to sustain a conviction" for the charged offense. Iowa R.Crim.P. 2.19(8)( a); State v. Geier, 484 N.W.2d 167, 170 (Iowa 1992). The court made it clear in Ellis that the contrary to the weight of the evidence standard was not the same as the sufficiency of the evidence standard, contrary to a previous holding. Ellis, 578 N.W.2d at 659.
The power of the trial court is much broader in a motion for new trial than a motion for judgment of acquittal. Id. at 658. In applying the weight of the evidence standard "[i]f the court reaches the conclusion that the verdict is contrary to the weight of the evidence and that a miscarriage of justice may have resulted, the verdict may be set aside and a new trial granted." Id. at 658-59.
The motion [for new trial] is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.
Id. at 659 (quoting 3 Charles A. Wright, Federal Practice and Procedure § 553, at 245-48 (2d ed. 1982)).
Cashen claims the verdict was contrary to the evidence and counsel was thus ineffective for not moving for a new trial on that ground. He correctly points out that such a motion should be granted when, after considering both inculpatory and exculpatory evidence, the verdict is contrary to the weight of the evidence, and a verdict meets that test when a greater amount of credible evidence supports one side of an issue than the other. See Ellis, 578 N.W.2d at 658-59. However, in support of this claim he merely refers to his argument that there was insufficient evidence to support the verdict and does not further identify, discuss, or compare the inculpatory and exculpatory evidence, nor does he suggest how a comparison of inculpatory and exculpatory evidence should lead to a conclusion the verdict was contrary to the weight of the evidence.
The question before us is: Would it have been an abuse of the trial court's discretion not to grant a new trial on this ground. See, e.g., State v. Owens, 635 N.W.2d 478, 482-83 (Iowa 2001) (stating that where defendant claimed counsel was ineffective for failing to move to sever a charge for separate trial, the question before the court on direct appeal was whether it would have been an abuse of trial court discretion not to find good cause to sever, and holding it would not have been an abuse of discretion to deny such a motion and counsel thus did not breach an essential duty by not moving for severance); see also State v. Bowers, ____ N.W.2d ___, ___ (Iowa 2002) (holding, where defendant claimed on direct appeal that trial counsel was ineffective for not requesting a bill of particulars, that counsel was not ineffective because the trial court would not have erred by denying such a motion).
This is not a case in which the testimony of a witness or witnesses which otherwise supports conviction is so lacking in credibility that the testimony cannot support a guilty verdict. Neither is it a case in which the evidence supporting a guilty verdict is so scanty, or the evidence opposed to a guilty verdict so compelling, that the verdict must be seen as contrary to the evidence. The evidence in this case simply does not preponderate heavily against the verdict. The trial court would not have abused its broad discretion by denying a motion for new trial. Consequently, Cashen has not established that his counsel was ineffective in not so moving.
Cashen in fact does not identify any issue of witness credibility which might have led to or supported the grant of a new trial.
At sentencing the trial court raised a question concerning whether the result of the trial would have been the same had the trial been a non-jury trial. However, any inference Cashen would draw to the effect the trial court's musing means that a motion for a new trial would have been granted is pure speculation, and thus whether any prejudice could have resulted from counsel not making such a motion is even more speculative. Just as we will not predicate error on mere speculation, see State v. Bolt, 505 N.W.2d 182, 185-86 (Iowa 1993), we also will not predicate a finding of ineffective assistance on mere speculation.
III. CONCLUSION
Viewing all the evidence in the light most favorable to the State, we conclude there was substantial evidence from which a rational finder of fact could find Cashen was guilty of possession of marijuana. Accordingly, we affirm the jury's verdict of guilt. We further find the weight of the evidence does not preponderate against the verdict and thus trial counsel was not ineffective by not moving for new trial on this ground. Cashen was not denied his Sixth Amendment right to effective assistance of counsel.