Opinion
No. 5-740 / 04-1608
Filed November 9, 2005
Appeal from the Iowa District Court for Muscatine County, Mark D. Cleve, Judge.
A defendant appeals following conviction and sentence for possession of a controlled substance with intent to deliver, in violation of Iowa Code section 124.401(1)(b)(7) (2003), and failure to affix a drug tax stamp, in violation of sections 453B.1, 453B.3, 453B.7, and 453B.12. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, Gary Allison, County Attorney, and Alan Ostergren, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Troy Clester appeals from his convictions and sentences for possession of a controlled substance with intent to deliver, in violation of Iowa Code section 124.401(1)(b)(7) (2003), and failure to affix a drug tax stamp, in violation of sections 453B.1, 453B.3, 453B.7, and 453B.12. Clester contends the record does not contain substantial evidence to support his convictions, and claims his trial counsel was ineffective for failing to object to certain testimony. We affirm Clester's convictions and sentences, and preserve his ineffective assistance of counsel claim for a possible postconviction proceeding.
I. Background Facts and Proceedings.
In the late evening hours of April 4, 2004, Clester was driving a vehicle on Highway 61 in Muscatine County. The vehicle was registered to Clester's mother, Mary. At approximately 8:40 p.m. Deputy Sheriff Michael Bailey, using stationary radar, determined that Clester was traveling at sixty-five miles per hour in a zone with a maximum posted speed limit of fifty-five miles per hour. Clester maintained his speed even after the maximum posted speed limit decreased to forty-five miles per hour.
Deputy Bailey pulled in behind Clester and activated his overhead lights. After the two vehicles had traveled approximately a block and a half, Clester began to pull his vehicle onto the shoulder of the road, but then pulled it back into the traveled portion of the road. He executed three turns, and eventually parked his vehicle in a handicapped parking space at a motel parking lot.
Deputy Bailey approached the vehicle and observed that Clester appeared "very nervous and was sweating quite profusely" despite the fact it was a cool April evening. Deputy Bailey also noticed that Clester was "shaking . . . and stumbling over his words[, and h]is eyes were . . . moving back and forth."
Clester presented Deputy Bailey with a non-driver identification card, and stated that he believed his license was suspended. Deputy Bailey determined Clester's privilege to drive had in fact been barred and placed Clester under arrest. Because Clester's vehicle was in a handicapped parking space, Deputy Bailey arranged to have the vehicle towed. Before leaving the scene, he performed a "cursory check . . . from the driver's side [door] . . . [to] make sure there was no contraband within an obvious view."
Deputy Bailey transported Clester to the jail while Deputy Sheriff Nate Mikell conducted an inventory search of the Clester vehicle. During the search, Deputy Mikell noticed that a portion of a plastic bag was sticking out from under a lifted edge of the gearshift boot at the location where the gearshift boot meets the "hump" on the floorboard between the front seats of the vehicle. The deputy also noticed there was a visible "bulge" in the boot itself. Deputy Mikell located a very large chunk of methamphetamine wrapped in a plastic bag underneath the rubber boot covering the vehicle's gearshift.
Laboratory testing confirmed the bag contained 17.84 grams of methamphetamine.
Deputy Mikell called Deputy Bailey back to the scene of the stop and gave him the bag of methamphetamine. Deputy Bailey returned to the jail, showed Clester the methamphetamine, told him he "would be charged with that," and asked him for consent to search his home. Accordingly to Deputy Bailey, Clester gave his consent and said there was "no more" at his residence.
Clester later revoked his consent, stating the trailer in which he lived belonged to his mother. Deputies went to the Clester residence and obtained Mary Clester's consent to search the trailer. The deputies limited their search to Clester's room. They found no drugs, drug paraphernalia, or other evidence that would tie Clester to the drugs found in the vehicle.
During trial Clester admitted he had driven while his license was barred but claimed he had not done so for over a year prior to his arrest. In particular, he contended he had not driven the car the weekend prior to his arrest, as he had been ill. He further testified that four adults lived in his home — his mother, his two brothers, and himself — and that the family had four vehicles. According to Clester all four family members, his own friends, and his mother's friends used the vehicle in which the drugs were found. Clester denied that the drugs were his and stated it was possible they belonged to either of his brothers. Clester also denied making the "no more" statement. Clester's friend, Mary Beth Haller, confirmed that Clester had been ill that weekend, that the family had four vehicles, and that "they just share `em . . . they do all drive them."
The jury found Clester guilty of possession of a controlled substance with intent to deliver, failure to affix a drug tax stamp, and driving while barred, and he was sentenced accordingly. Clester appeals. He contends the record does not contain substantial evidence to support his convictions for possession with intent deliver and the tax stamp violation, because there is insufficient evidence to establish he knowingly possessed the methamphetamine. Clester also contends his trial counsel was ineffective for failing to object to and seek suppression of his statement that "no more" would be found at his home.
Clester's conviction and sentence for driving while barred, in violation of §§ 321.560 and 321.561, is not at issue on appeal.
II. Scope and Standard of Review.
We review Clester's sufficiency of the evidence claim for the correction of errors at law. State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005). We will uphold the jury's verdict so long as it is supported by substantial evidence in the record, when that record is viewed in its entirety and in the light most favorable to the State. State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005). Evidence is substantial if it "would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt." State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980).
Clester's ineffective assistance of counsel claim, which raises constitutional issues, is reviewed de novo. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
III. Knowing Possession.
To prove unlawful possession of a controlled substance, the State has the burden of proving the defendant (1) exercised dominion and control over the contraband, (2) had knowledge of its presence, and (3) had knowledge the material was a controlled substance. State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003). When, as here, the contraband is not discovered on the defendant's person, the State must establish the defendant constructively possessed the item. Id. at 138. This occurs when the defendant knows of the contraband's presence and has the authority or right to maintain control of it. Id.
In cases of joint control over the location when the contraband is found, constructive possession cannot be inferred, but
must be established by other proof, such as incriminating statements made by the defendant, incriminating actions of the defendant upon the police's discovery of the controlled substance among or near the defendant's personal belongings, the defendant's fingerprints on the packages containing the controlled substance, and any other circumstances linking the defendant to the controlled substance.
Id.
When an illegal substance is found in a motor vehicle, we may consider the following factors to determine whether the State has established constructive possession: (1) was the contraband in plain view, (2) was it with the 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. State v. Kemp, 688 N.W.2d 785, 789 (Iowa 2004). These factors are only a guide, however, and we must determine whether all of the facts and circumstances give rise to a reasonable inference that a defendant knew of the contraband's presence and had dominion and control over it. Carter, 696 N.W.2d at 39-40.
Clester contends the record does not contain evidence sufficient to establish that he constructively possessed the methamphetamine found in the vehicle. He points to evidence that he was not the registered owner of the vehicle; evidence that other individuals had access to vehicle; as well as his own assertions that he had not driven the vehicle the weekend before his arrest, and in fact had not driven the vehicle for nearly a year. He contends the methamphetamine was hidden and notes Deputy Bailey's failure to locate the methamphetamine. He also notes the lack of other evidence tying him to the methamphetamine.
Upon review of the record, we believe the evidence supports the jury's conclusion that Clester did know the methamphetamine was in the vehicle and that he had the right or authority to maintain control over it. Clester was the only occupant of the vehicle, and the drugs were located within easy reach of the driver's seat. Although the methamphetamine itself was hidden from view, the plastic bag it was wrapped in and the bulge it created in the gearshift boot were plainly visible to Deputy Mikell. Moreover, the visible portion of the plastic was in a place that one would not ordinarily expect to see such an item, and the raised boot edge and visible plastic give rise to a reasonable inference that the drugs had been hidden in haste.
Deputy Bailey's failure to note the plastic bag or bulge is explained by the fact he conducted only a "cursory" review of the vehicle's interior from the driver's side door.
In addition, Clester engaged in suspicious activity. He failed to stop immediately, began to pull over, then resumed driving for several blocks before parking the vehicle. It is reasonable to infer that Clester used this extra time to hide the methamphetamine in the gearshift boot. Clester was also acting "very nervous" — sweating, shaking, stumbling over his words, and darting his eyes. Finally, when he was confronted with the drugs which were recovered from the vehicle he was driving, Clester stated that "no more" would be found at his home. Under the circumstances it is reasonable to infer Clester was asserting that a search of his home would not reveal any drugs in addition to those already found in the vehicle.
When viewed in the light most favorable to the State, the evidence substantially supports a finding that Clester constructively possessed the methamphetamine. Because Clester does not challenge the sufficiency of the evidence to support a finding of intent to deliver the methamphetamine or the lack of a drug tax stamp, we conclude his convictions are supported by substantial evidence.
IV. Ineffective Assistance of Counsel.
Clester asserts his trial counsel was ineffective for failing to object to and suppress the "no more" statement, as it was a product of custodial interrogation and made without the warnings required under Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706-07 (1966). To establish this claim, Clester must prove his attorney's performance fell below "an objective standard of reasonableness" and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984).
Typically, ineffective assistance of counsel claims are preserved for possible postconviction review, to allow a full development of the record regarding counsel's actions. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). We address such a claim on direct appeal only where the record is sufficient to reach the merits of the defendant's contentions. State v. Miller, 622 N.W.2d 782, 785 (Iowa Ct.App. 2000). Here, we find the record insufficient to resolve Clester's claim.
Under Miranda, if the required warnings are given, any evidence obtained as a result of a custodial interrogation is inadmissible unless the State can show the defendant knowingly waived his right to remain silent and to counsel. Miranda, 384 U.S. at 479, 86 S. Ct. at 1630, 16 L. Ed. 2d at 726. It is undisputed Clester was in custody at the time the "no more" statement was made. However, the record is silent on the question of whether Clester received Miranda warnings, and the record does not clearly indicate whether the statement was elicited by police interrogation or volunteered following a request to search Clester's home. The record has not been sufficiently developed to address Clester's ineffective assistance of counsel claim. Accordingly, we preserve that claim for a possible postconviction proceeding. Clester's convictions and sentences are affirmed.