IN THE COURT OF APPEALS OF IOWA
No. 16-0884
Filed July 6, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
LARRY PERRY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,
Judge.
The defendant appeals his convictions for possession of
methamphetamine, third offense, and driving while barred as a habitual offender.
AFFIRMED.
Andrea M. Flanagan of Sporer & Flanagan, P.L.L.C., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
2
MCDONALD, Judge.
Following trial by jury, Larry Perry was convicted of possession of
methamphetamine, third offense, and driving while barred as a habitual offender.
In this direct appeal, Perry challenges the sufficiency of the evidence supporting
the conviction for possession of methamphetamine. Perry also challenges the
performance of his trial counsel, contending his counsel provided constitutionally
deficient representation in failing to move to sever the counts of the trial
information.
We first address the challenge to the sufficiency of the evidence. Our
review is for the correction of legal error. See State v. Webb, 648 N.W.2d 72, 75
(Iowa 2002). We will uphold a verdict where the verdict is supported by
substantial evidence. Id. Evidence is substantial when the quantum and quality
of evidence is sufficient to “convince a rational fact finder that the defendant is
guilty beyond a reasonable doubt.” Id. at 76 (citing State v. Heard, 636 N.W.2d
227, 229 (Iowa 2001)). In conducting our review, “we view the evidence in the
light most favorable to the State, including legitimate inferences and
presumptions which may fairly and reasonably be deduced from the evidence in
the record.” State v. Leckington, 713 N.W.2d 208, 213 (Iowa 2006) (citing State
v. Casady, 597, N.W.2d 801, 804 (Iowa 1999)).
In the late of night, Des Moines Police Officer Tori Aletheia observed a
moving vehicle with an expired license plate. Officer Aletheia initiated a traffic
stop. After the vehicle pulled over, Officer Aletheia exited her vehicle and walked
toward the suspect vehicle. As Officer Aletheia approached the suspect vehicle,
Perry opened the driver’s door and exited the vehicle. Dashcam video showed
3
Perry was holding something in his right hand. At the same time, two occupants
of the vehicle exited the vehicle from the front and rear passenger seats. Officer
Aletheia instructed all of the occupants to return to the vehicle and close the
doors. Perry began walking away from the officer. As Perry took his first few
steps, he made a throwing motion with his right hand towards a bush near the
sidewalk. He then started running.
Officer Aletheia radioed dispatch and pursued Perry on foot. While Officer
Aletheia pursued Perry, the passengers left the scene. After a short chase,
Officer Aletheia apprehended Perry. As Officer Aletheia led Perry back to her
squad car, backup arrived. Officer Adam Herman searched the area. Officer
Herman found a plastic bag containing a crystalline substance under a bush near
the sidewalk along Perry’s footpath. The bag was in relatively new condition and
appeared to be freshly placed underneath the bush. Another officer located
Perry’s car keys somewhere along Perry’s footpath. Subsequent testing of the
white substance in the bag determined it was methamphetamine.
“Unlawful possession of a controlled substance requires proof that the
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.” State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003) (citing
State v. Reeves, 209 N.W.2d 18, 21 (Iowa 1973)). “In the realm of controlled
substance prosecutions, possession can be either actual or constructive.” State
v. Cashen, 666 N.W.2d 566, 569 (Iowa 2003) (citing State v. Maghee, 573
N.W.2d 1, 10 (Iowa 1997)). “[T]here is no hard and fast distinction between
actual possession and constructive possession; where the former ends and the
4
latter begins depends on the facts and circumstances of each case and does not
necessarily turn on the question of whether the contraband was found on the
defendant’s person.” State v. Eubanks, No. 13-0602, 2014 WL 2346793, at *3
(Iowa Ct. App. May 29, 2014). An individual can have “actual possession when
. . . substantial evidence supports a finding it was on his or her person ‘at one
time.’” State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014) (quoting State v.
Vance, 790 N.W.2d 775, 784 (Iowa 2010)).
When the evidence is viewed in the light most favorable to the jury’s
verdict, the verdict is supported by substantial evidence. The dashcam footage
showed Thomas exited the vehicle with a shiny object in his right hand. Perry
argues the shiny object was his car keys. Both Officers Aletheia and Herman
testified they reviewed the dashcam video and concluded it showed Perry
holding a plastic bag consistent with the plastic bag found under the bush. The
resolution of this disputed fact issue was for the jury. Perry made a throwing
motion with his right hand as he began to run. Perry’s throwing motion also
could be most easily explained as “an effort to get the drugs off his person.” See
id. at 444. As in Thomas, the drugs were discovered near Perry’s location before
be he began to run. See id. (noting the “drugs were found in close proximity to
the defendant”). Throwing the bag and fleeing the scene evidence Perry’s
“knowledge he was engaged in unlawful conduct—the possession of controlled
substances.” See Eubanks, 2014 WL 2346793, at *4. The dashcam footage
showed no other person entered the area where the drugs were discovered,
including the two passengers in Perry’s vehicle, who left in the opposite direction.
The plastic bag was in near-pristine condition, from which the jury could have
5
inferred it was only recently left on the ground. Officer Hochstetler testified there
was no history of complaints regarding methamphetamine being left out in the
community, suggesting the drugs were not placed there by a third party before
the events unfolded. “These are all facts from which it can be inferred the
contraband was in the actual physical possession of [Perry] immediately prior to
his arrest rather than coming from some other source.” Id. The jury’s verdict
was supported by substantial evidence.
We next resolve Perry’s challenge to his counsel’s performance. Perry
argues his counsel was ineffective in failing to move to sever the possession of
methamphetamine charge and the driving while barred charge. As a general
rule, “[i]neffective-assistance-of-counsel claims are typically addressed in
postconviction-relief proceedings where the record is more fully developed.” Id.
at *5. However, we may resolve an ineffective-assistance-of-counsel claim on
direct appeal where the record is sufficient to do so. State v. Maxwell, 743
N.W.2d 185, 195 (Iowa 2008). Our review is de novo. Id.
To establish his claim of ineffective assistance of counsel, Perry “must
prove: (1) counsel failed to perform an essential duty; and (2) prejudice resulted.”
Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To prove the first
element, Perry must show counsel’s performance fell below the standard of a
reasonably competent attorney. See Ledezma v. State, 626 N.W.2d 134, 142
(Iowa 2001). To prove the second element, Perry must show “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 143 (quoting Strickland, 466
U.S. 693). “[B]oth elements do not always need to be addressed. If the claim
6
lacks prejudice, it can be decided on that ground alone without deciding whether
the attorney performed deficiently.” Id. at 142 (citing Strickland, 466 U.S. at 697;
State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995); State v. Bumpus, 459
N.W.2d 619, 627 (Iowa 1990); Taylor v. State, 352 N.W.2d 683, 685 (Iowa
1984)).
Perry’s counsel was not ineffective. Iowa Rule of Criminal Procedure
2.6(1) governs the issue. It states:
Two or more indictable public offenses which arise from the
same transaction or occurrence or from two or more transactions or
occurrences constituting parts of a common scheme or plan, when
alleged and prosecuted contemporaneously, shall be alleged and
prosecuted as separate counts in a single complaint, information or
indictment, unless, for good cause shown, the trial court in its
discretion determines otherwise.
Iowa R. Crim. P. 2.6(1). Perry contends a single trial was improper because
there was no “common plan or scheme” here, but he ignores the disjunctive
language in the rule that requires a single prosecution where the public offenses
arise out of “the same transaction or occurrence.” Id. To determine if two crimes
are from the same transaction or occurrence we review the time, place, and
circumstances of the crimes. State v. Bair, 362 N.W.2d 509, 512 (Iowa 1985). In
this case, the charges arose from the same transaction or occurrence originating
with the traffic stop. Counsel had no duty to make a motion to sever. See State
v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998) (stating “[t]rial counsel is not
incompetent in failing to pursue a meritless issue”).
Perry also has not established prejudice. To the contrary, Perry’s defense
was predicated on trying the two offenses together. Perry’s counsel defended
against the possession charge by arguing Perry fled the scene not because he
7
had methamphetamine and was trying to dispose of it but because he had no
driver’s license and was trying to avoid arrest for that. Perry actually benefited
from trying the two charges together because he justified his flight while being
able to deny consciousness of guilt for possession of methamphetamine. Perry
nonetheless contends he was prejudiced with respect to the possession charge
because the jury heard evidence regarding Perry’s driving record and could
conclude Perry had a propensity toward criminal behavior. This argument fails
because the supreme court has concluded the propensity argument is
“unequivocally” distinct from our “law dealing with joinder of offenses.” State v.
Romer, 832 N.W.2d 169, 183 (Iowa 2013). Finally, we note the jury was
instructed Perry’s innocence or guilt must be determined separately on each
count, which minimizes the risk of unfair prejudice. We presume the jury follows
the district court’s instructions. Lehigh Clay Prods., Ltd. v. Iowa Dep’t of Transp.,
512 N.W.2d 541, 546 (Iowa 1994). Under the circumstances, Perry has not
established Strickland prejudice.
Perry requests we preserve certain claims for postconviction-relief
proceedings. He notes trial counsel failed to strike a juror who worked with the
presiding judge and believes this led to undue influence. He also notes trial
counsel made purportedly disparaging remarks regarding the neighborhood in
which Perry was arrested, which may have alienated jurors from that
neighborhood. We preserve these claims. See State v. Johnson, 784 N.W.2d
192, 198 (Iowa 2010).
For the above-stated reasons, we affirm the defendant’s convictions.
AFFIRMED.