Opinion
No. 5-631 / 04-1175
Filed October 26, 2005
Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer, Judge.
Benjamin Burens appeals from his convictions for possession of cocaine and methamphetamine with intent to deliver as a second offender and possession of ten or more dosage units of cocaine base without affixing a tax stamp. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.
Heard by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Benjamin Burens appeals from the judgment and sentence entered by the district court on a jury verdict finding him guilty of possession of cocaine with intent to deliver as a second offender in violation of Iowa Code sections 124.401(1)(c) and 124.411 (2003), possession of methamphetamine with intent to deliver as a second offender in violation of sections 124.401(1)(c) and 124.411, and possession of ten or more dosage units of cocaine base without affixing a tax stamp in violation of section 453B.12. He contends the district court erred in overruling his motion for acquittal, in failing to modify a jury instruction on constructive possession, and in allowing testimony that commented on his right to remain silent. He also asserts that his trial counsel was ineffective in several respects. We affirm.
I. Background Facts Proceedings
A jury could have found the following facts. On February 22, 2004, Steven Newell, a police officer with the Waterloo Police Department, stopped a car near the corner of Springview and Newell Streets for a traffic violation. Burens, the driver of the car, did not have a driver's license or registration, and he stated that he purchased the car the day prior to the stop. Officer Newell placed Burens in the back seat of his squad car. He left the passenger of the car, Jason Behrends, seated alone in the passenger seat of Burens's car while he returned to his squad car to write a traffic citation. Officer Newell testified that he kept an eye on Behrends while he wrote the citation and would have seen if Behrends had reached under the driver's seat of the car.
Corbin Payne, a police officer with the Waterloo Police Department assigned to the Tri-County Drug Task Force, testified that the area of Waterloo where Officer Newell stopped Burens's car is a known drug trafficking area.
Officer Newell received Burens's consent to search the car. Meanwhile, Officer Brian Hoelscher arrived at the scene. Officer Hoelscher removed Behrends from Burens's car and patted him down, discovering nothing. He then searched the car and found the following contraband: a flashlight between the two cushions of the front bench seat containing four plastic bags of methamphetamine and a crack cocaine pipe displaying residue and burn marks, eleven rocks of crack cocaine scattered underneath the driver's seat, and a key chain with a small silver box containing a single rock of crack cocaine also located underneath the driver's seat.
On March 4, 2004, the State filed a trial information charging Burens with possession of cocaine and methamphetamine with intent to deliver as a second offender and possession of cocaine base without affixing a tax stamp. On May 28, 2004, a Black Hawk County jury found Burens guilty as charged, and on June 8, 2004, a second jury determined that Burens was a habitual offender. The district court sentenced Burens on July 26, 2004, to a prison term not to exceed fifteen years on each possession count and a term not to exceed two years on the tax stamp violation. The court ordered the sentences to run concurrently, with the one-third sentence minimum applied to the two possession charges. Burens now appeals.
II. Sufficiency of Evidence
Burens first claims the record contains insufficient evidence to support his convictions because the evidence fails to establish that he constructively possessed controlled substances. The State contends that Burens may not have preserved error on the issue of insufficiency of evidence to support a conviction under a theory of constructive possession because his motion for judgment of acquittal was too general. In support of its argument the State cites State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996), for the proposition that when a defendant's motion for acquittal fails to point out any specific deficiency in the evidence, that motion fails to preserve those specific arguments for appeal. However, the Iowa Supreme Court has recognized an exception to the standard rule for error preservation when the record reveals that the grounds for the motion were apparent and understood by the trial court and counsel. State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005). When the district court ruled on Burens's motion for judgment of acquittal, it specifically noted that "[t]he more significant aspect of defendant's motion is the possession aspect, and a jury issue is generated, in my view, very clearly as a result of the facts and circumstances of this case." Based on this statement in the court's ruling, we find that error was preserved on the issue of sufficiency of the evidence, and we will address the merits of the defendant's claim.
When a defendant claims that there is insufficient evidence to support a conviction, we review that claim for the correction of errors at law and uphold the verdict if substantial evidence supports it. Williams, 695 N.W.2d at 27. 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). When we make sufficiency of the evidence determinations, we consider all the evidence in the record, not just the evidence supporting guilt. State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005) (citing State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005)). However, when we make such determinations, we also 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.
To prove unlawful possession of a controlled substance, the State has the burden of proving that the defendant (1) exercised dominion and control [i.e., possession] over the contraband, (2) had knowledge of its presence, and (3) had knowledge that the material was a controlled substance. State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003). Proof that a defendant had opportunity of access to the location where the contraband is found will not, without more, support a finding of unlawful possession. Id.
Possession may be actual or constructive, and actual possession only occurs if the controlled substance is discovered on the defendant's person. Carter, 696 N.W.2d at 38. In contrast, constructive possession occurs when the defendant has knowledge of the presence of the controlled substance and has the authority or right to maintain control of it. Bash, 670 N.W.2d at 138. Because the controlled substances at issue here were not found on Burens's person, the issue in this case is whether Burens constructively possessed the drugs discovered in his vehicle.
When a motor vehicle is involved in a possession case, 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 personal effects belonging to the accused, (3) was it found on the same side of the car seat as the accused or immediately next to him, (4) was the accused the owner of the vehicle, and (5) was there suspicious activity by the accused. State v. Kemp, 688 N.W.2d 785, 789 (Iowa 2004) (citing State v. Atkinson, 620 N.W.2d 1, 4 (Iowa 2000)).
These factors are only to be used as a guide in determining whether the State has established constructive possession.
In this case, Burens actually owned the car where the drugs were discovered. When the police officer stopped him for a minor traffic violation, he appeared nervous. Burens was stopped in a known drug trafficking area at approximately ten o'clock at night. Burens was seated in the driver's seat of the vehicle. There were eleven rocks of crack cocaine directly under his seat and another rock of crack cocaine under his seat contained in a silver keychain. In addition, there were four packages of methamphetamine and a crack pipe with burnt cocaine residue hidden in a flashlight within his reach between the seat cushions of the front bench seats. The passenger in Burens's car did not make any furtive gestures as if he was hiding drugs in the vehicle, and no drugs were discovered on the passenger's person. Furthermore, the State presented testimony that drug dealers keep their drugs well hidden or close to them at all times, while drug users typically consume their drugs immediately rather than stockpiling for later use.
Viewing all the evidence in the light most favorable to the State, we believe a rational jury could infer that Burens knew controlled substances were present in his vehicle and exercised dominion and control over them. Because Burens does not contend there was insufficient evidence on intent to deliver, that issue is conceded. We conclude there was sufficient evidence to support Burens's convictions.
III. Jury Instruction
Burens next contends the trial court erred in failing to modify its jury instruction on constructive possession to include additional language regarding the dominion and control element of possession.
We review matters regarding jury instructions for the correction of errors at law. State v. Mesch, 574 N.W.2d 10, 12 (Iowa 1997). On appeal, we determine whether the jury instructions correctly state the law and are supported by substantial evidence that would convince a rational fact finder of what the parties are attempting to prove. State v. Predka, 555 N.W.2d 202, 204 (Iowa 1996). We will not reverse a conviction based on an error in instructing the jury unless the error is prejudicial. State v. Holtz, 548 N.W.2d 162, 164 (Iowa Ct.App. 1996). An error in instructing the jury is presumed prejudicial unless upon a review of the whole case, we find the error resulted in no prejudice. State v. Bone, 429 N.W.2d 123, 127 (Iowa 1988).
The instruction received by the jury in this case was very close to the applicable uniform jury instruction. In addition, the instruction given by the court is similar to one approved in State v. Simpson, 528 N.W.2d 627, 631 (Iowa 1995) (overruled on other grounds by State v. Webb, 648 N.W.2d 72 (Iowa 2002)). We find that the challenged instruction adequately instructed the jury on constructive possession. We conclude that the district court did not err in rejecting Burens's proposal to amend the jury instruction defining possession.
The jury received the following instruction:
The word "possession" includes actual as well as constructive possession, and also sole as well as joint possession. A person who has direct physical control of something on or around his person is in actual possession of it. A person who is not in actual possession, but who has knowledge of the presence of something and has the authority or immediate right to maintain control of it either alone or together with someone else, is in constructive possession of it. If one person alone has possession of something, possession is sole. If two or more persons share possession, possession is joint.
IV. Testimony Commenting on Defendant's Right to Remain Silent
Burens argues the trial court abused its discretion by admitting evidence that he exercised his right to remain silent. When Burens's defense counsel cross-examined Officer Newell, he elicited the following testimony, which implied the officer did not properly investigate this case:
Q. Now, when I first got involved in this case, I read all your police reports, and you don't mention anything where you did an investigation or even asked my client who had been in the car other than you, did you? A. No.
Q. And you didn't ask him if anybody else drove the car or used the car, did you? A. No.
After this cross-examination occurred, the State sought to offer evidence that Officer Newell had in fact attempted to investigate the matter alluded to by counsel, but was thwarted by Burens's refusal to answer questions. After some discussion outside the jury's presence, the trial court concluded that the defendant had opened the door to the State's proposed evidence. The prosecutor then asked the following questions of Officer Newell in the jury's presence:
Q. Did — while you were at the Waterloo Police Department, did you make an attempt to question the defendant about this incident? A. Yes.
Q. Would the defendant answer your questions? A. No.
Immediately following this exchange, the trial court informed the jurors that they should consider the testimony "only to explain why the questions were not asked of the defendant" and admonished them not to consider Burens's refusal to answer questions as an indication of his guilt.
Burens contends this testimony improperly commented on his exercise of his right to remain silent. We review the district court's decision on the admissibility of evidence for errors at law. State v. Hornik, 672 N.W.2d 836, 838 (Iowa 2003). A trial court's decision to admit evidence is discretionary, and we will only reverse evidentiary rulings if the trial court abused its discretion in balancing the probative value with the danger of undue prejudice in admitting evidence. State v. Hubka, 480 N.W.2d 867, 868 (Iowa 1992).
A party can open the door to otherwise inadmissible evidence by introducing testimony about the subject matter. Miller v. Bonar, 337 N.W.2d 523, 529 (Iowa 1983). When Burens elicited testimony that implied Officer Newell did not properly investigate this case because he failed to question the defendant about whether other people had access to his vehicle, he opened the door to testimony regarding his refusal to answer questions about this incident. Therefore, we reject this assignment of error.
A defendant may not use his right to maintain silent to prevent the prosecution's "fair response" to evidence he or she introduced at trial. People v. Austin, 28 Cal. Rptr. 2d 885, 895 (Ct.App. 1994) (overruled on other grounds).
V. Ineffective Assistance of Counsel
Burens also claims that his trial counsel was ineffective for (1) failing to call his mother, Bonnie Vesper, as a witness; (2) failing to make a specific motion for judgment of acquittal arguing that the State failed to prove constructive possession; and (3) failing to argue that the jury's verdict was contrary to the weight of evidence in his motion for new trial.
We review ineffective assistance of counsel claims de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). Generally, we preserve ineffective assistance of counsel claims for postconviction relief, but if the record adequately presents the issue, we will resolve the claims on direct appeal. State v. Miranda, 672 N.W.2d 753, 758 (Iowa 2003). We find that the record in this case is sufficient for us to rule upon the issues on direct appeal.
Burens bears the burden of establishing by a preponderance of evidence that his trial counsel was ineffective. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001). To prove ineffective assistance of counsel, Burens must establish the following: (1) counsel failed to perform an essential duty and (2) prejudice resulted from this omission. State v. Constable, 505 N.W.2d 473, 479 (Iowa 1993). To establish the first prong of the test, Burens "must overcome the presumption that counsel was competent and show that counsel's performance was not within the range of normal competency." State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994). To establish the second prong, Burens must show a reasonable probability that but for counsel's errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); Gering v. State, 382 N.W.2d 151, 153-54 (Iowa 1986). An inability to prove "either the duty or the prejudice prong defeats the claim of ineffective assistance of counsel." State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003).
The record reveals that defense counsel did not fail to call the defendant's mother as a witness. Rather, the mother was excluded as a witness because she attended the trial in violation of a sequestration order. Assuming without deciding that defense counsel breached a duty by failing to ensure that Vesper did not violate the sequestration order, we find that Burens suffered no prejudice from his mother's failure to testify. We reach this conclusion because we note that Burens's counsel successfully called other witnesses to provide the same testimony Burens proposed Vesper would provide, that Burens had acquired the car and others had driven it within twenty-four hours of his arrest. Because Burens failed to show a reasonable probability that the proceeding would have generated a different result if his counsel had successfully called Vesper as a witness, we reject this assignment of error. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.
Burens next claims his trial counsel was ineffective for failing to make a specific motion for judgment of acquittal arguing that the State failed to prove construction possession. Because we have already addressed the merits of Burens's sufficiency of the evidence claim, this issue is moot.
In his final claim of ineffective assistance of counsel, Burens argues his trial counsel was ineffective for failing to include the argument that the jury's verdict was contrary to the weight of evidence in his motion for new trial. The district court may grant a new trial when the jury's verdict is "contrary to law or evidence," and "contrary to evidence" means "contrary to the weight of the evidence." Iowa R. Crim. P. 2.24(2)( b)(6); State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). A verdict is contrary to the weight of the evidence where a greater weight of credible evidence supports one side of an issue or cause than the other.
Our supreme court has admonished trial courts to exercise their discretion in ruling on motions for new trial "carefully and sparingly." Ellis, 578 N.W.2d at 659. Trial courts should invoke their power to grant a new trial only in exceptional cases where the evidence preponderates heavily against the verdict so that they do not diminish the jury's role as the principal trier of facts. Id. When the evidence is nearly balanced or is such that different minds could fairly arrive at different conclusions, the district court should not disturb the jury's findings. State v. Reeves, 670 N.W.2d 199, 203 (Iowa 2003). Even if the district court might be inclined to render a different verdict than the jury, it must uphold that verdict in the face of mere doubts that it is correct; only when the court finds the verdict incorrect due to mistake, prejudice, or other cause, may it set aside that verdict and remand the question to a different jury. Id.
Based on the evidence presented at trial and the comments made by the trial court when addressing the defendant's earlier motion for judgment of acquittal, we conclude this is not an exceptional case where the evidence "preponderates heavily against the verdict." We conclude trial counsel was not ineffective for failing to expand his motion for new trial to include a claim that the verdict was contrary to the weight of the evidence.
VI. Conclusion
Because we find no merit in any of Burens's appellate claims, we affirm his convictions for possession of cocaine and methamphetamine with intent to deliver as a second offender and possession of ten or more dosage units of cocaine base without affixing a tax stamp.