IN THE COURT OF APPEALS OF IOWA
No. 13-0979
Filed November 26, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CALVON DESMOND MILES,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Cynthia
Danielson, Judge.
Defendant appeals his convictions for possession of a controlled
substance (marijuana) with intent to deliver and failure to affix a drug tax stamp.
AFFIRMED.
Steven J. Swan of Swan Law Office, Keokuk, for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney
General, Patrick C. Jackson, County Attorney, and Tyron Rogers, Assistant
County Attorney, for appellee.
Considered by Danilson, C.J., Doyle, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
2
MILLER, S.J.
The defendant appeals his convictions for possession of a controlled
substance (marijuana) with intent to deliver and failure to affix a drug tax stamp.
We determine there is substantial evidence in the record to support a finding the
defendant had actual possession of the marijuana prior to the time it was found
on the shelf in a convenience store by an officer. We determine the district court
did not abuse its discretion in sentencing defendant to a term in prison, rather
than granting him a deferred judgment.
I. Background Facts & Proceedings
On September 9, 2012, shortly after 4:30 in the morning, officer Stevan
Nelson of the Burlington Police Department walked into a convenience store. As
he walked in, Nelson saw Calvon Miles walking towards him down the center
aisle of the store. Nelson observed Miles’s “eyes light up, if you will, get larger,
as if in surprise.” Miles started walking backwards, while still facing officer
Nelson. The shelving in the convenience store was about four feet high, and
over the top of the shelving Nelson saw Miles reach down with his left arm, as if
he was removing something from his coat or jacket pocket. Nelson then saw
Miles extend his left arm out towards the end of an aisle.
When officer Nelson came around the end of the aisle he saw a large
plastic bag of marijuana on a shelf in the area where Miles had just been
reaching. The bag did not have a drug tax stamp affixed. Miles was arrested. In
a pat-down search four small buds of loose marijuana were found in his left front
jacket pocket. Miles also had $488 in various denominations and a cell phone.
3
Laboratory testing confirmed the substances were marijuana. The plastic bag
contained 51.31 grams of marijuana.
Miles was charged with possession of a controlled substance (marijuana)
with intent to deliver, in violation of Iowa Code section 124.401(1)(d) (2011), and
failure to affix a drug tax stamp, in violation of sections 453B.1 and 453B.12. A
jury found Miles guilty of these offenses. He was sentenced to five years in
prison on each count, to be served concurrently. Miles now appeals.
II. Sufficiency of the Evidence
Miles contends there is insufficient evidence in the record to support his
conviction for possession of marijuana with intent to deliver. He points out that
there were other people in the convenience store and states someone else could
have placed the bag of marijuana on the store shelf.1 He asserts there is
insufficient evidence to show he had constructive possession of the marijuana.
We review claims challenging the sufficiency of the evidence in a criminal
case for the correction of errors at law. State v. Dalton, 674 N.W.2d 111, 116
(Iowa 2004). We will uphold the jury’s verdict when it is supported by substantial
evidence. State v. Hagedorn, 679 N.W.2d 666, 668 (Iowa 2004). “Evidence is
substantial if it would convince a rational fact finder that the defendant is guilty
beyond a reasonable doubt.” State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005).
We view the evidence in the light most favorable to the State, “including
1
Miles also asserts an evidence log showed the State had a surveillance video that
was never provided to him. Officer Nelson testified he filled out the paperwork for the
video, expecting to receive it from the convenience store, but it was never provided to
him.
4
legitimate inferences and presumptions that may fairly be deduced from the
record evidence.” State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005).
In order to establish possession of a controlled substance, the State must
prove a defendant “exercised dominion and control over the contraband, had
knowledge of the contraband’s presence, and had knowledge the material was a
narcotic.” State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014). This may be
established through actual possession or constructive possession. Id. The State
claims this case involves actual possession, rather than constructive possession,
of a controlled substance, and we agree.
The State may prove actual possession through direct or circumstantial
evidence. Id. A defendant has actual possession of a controlled substance
when it is found on his or her person or there is substantial evidence the
controlled substance was on his or her person at some point in time. Id.; see
also State v. Vance, 790 N.W.2d 775, 784 (Iowa 2010) (“Although the
pseudoephedrine was not found on Vance’s person at the time of the stop,
substantial evidence supports the jury’s finding that at one time Vance had actual
possession of the pseudoephedrine with the intent to manufacture
methamphetamine.”).
We determine there is substantial evidence in the record to support a
finding Miles had actual possession of the marijuana prior to the time it was
found on the shelf in the convenience store by officer Nelson. There was
evidence Miles appeared to be surprised when the officer walked into the
convenience store. Officer Nelson testified he observed Miles reach down with
5
his left arm, as if he was removing something from his coat or jacket pocket.
Nelson then saw Miles extend his left arm out towards the end of the aisle.
When the officer looked on the shelf in the area where Miles had been reaching,
he saw the bag of marijuana. Furthermore, the presence of marijuana buds in
Miles’s jacket pocket supports a finding he took the bag of marijuana out of his
pocket, and thus, had the marijuana on his person. Based on the evidence
presented, the jury could find Miles had possession of the marijuana, but took it
out of his pocket and placed it on a shelf in the convenience store when he was
surprised by the presence of the officer.
III. Sentencing
Miles claims the district court abused its discretion in sentencing him to
prison. He points out that he was only twenty-two years old at the time he was
sentenced and asserts the court should have granted him a deferred judgment.
He states the prison sentence will hinder his efforts at rehabilitation.
Our review of a district court’s sentencing decision is for the correction of
errors at law. State v. Hennings, 791 N.W.2d 828, 833 (Iowa 2010). “We will not
reverse the decision of the district court absent an abuse of discretion or some
defect in the sentencing procedure.” Id. There is an abuse of discretion when
the court’s decision was exercised on grounds or for reasons that were clearly
untenable or unreasonable. State v. Bentley, 757 N.W.2d 257, 262 (Iowa 2008).
The court considered Miles’s age, his criminal record, his education, and
his employment history. The court stated, “Defendant’s criminal record is
absolutely abysmal and would warrant no consideration of a deferred judgment
6
under any circumstances.” The court also considered the fact that Miles had not
been successful on probation in the past, stating, “He has never complied with
many of the requirements of probation when given the opportunity to do so. He’s
never successfully completed probation.” We determine the district court did not
abuse its discretion in sentencing Miles to a term in prison, rather than granting
him a deferred judgment.
We affirm Miles’s convictions and sentences.
AFFIRMED.