Opinion
No. 5-840 / 04-1691
Filed December 7, 2005
Appeal from the Iowa District Court for Woodbury County, Patrick McCormick, District Associate Judge.
Randy Lee Webster appeals from his conviction following jury trial for possession of marijuana. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, Thomas S. Mullin, County Attorney, and David Skilling, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Randy Lee Webster appeals following his conviction for possession of marijuana in violation of Iowa Code section 124.401(5) (2003). Webster challenges the sufficiency of the evidence to sustain his conviction. He also argues that his trial counsel was ineffective for failing to object to several jury instructions and to evidence of an outstanding warrant for his arrest. We affirm.
I. Background Facts Proceedings
A jury could have found the following facts. On September 19, 2003, Sioux City police officer Dane Wagner received information that there was an outstanding warrant for Webster's arrest. He was also advised that Webster had been observed riding in a white Buick Regal missing its rear window. Officer Wagner located the Buick, observed Webster, and stopped the car. The officer noticed a strong odor of marijuana coming from inside the vehicle. He arrested Webster as well as the driver of the car, Jessica Beardshear.
Officer Wagner patted Webster and Beardshear down and had Beardshear empty her pockets. He located nothing illegal while conducting the patdown searches. The officer then handcuffed Webster and Beardshear and placed them in the back seat of his squad car. He placed Webster in the rear passenger-side seat and placed Beardshear in the driver-side of the rear seat.
The officer testified that drugs are sometimes missed during a patdown search because they are often stored in a suspect's crotch or other `"private areas." He testified he waits until a suspect is in jail to search those areas.
After Officer Wagner transported Webster and Beardshear to the law enforcement center, he searched the back seat of his squad car for contraband. Wagner removed the rear seat of the squad car and then shook the seat. After doing so, he discovered a plastic bag of marijuana directly beneath the seat on the side where Webster had been sitting. The marijuana was located so that Webster would have been sitting between the bag and Beardshear. Officer Wagner testified that even though Webster was handcuffed in the patrol car, he would have been able to stuff the bag of marijuana into the seat where it was later discovered. He also testified that he checked the rear seat at the beginning of his shift on September 19 and discovered no contraband. Webster and Beardshear were the first individuals arrested by the officer that day. Both Webster and Beardshear denied any knowledge of the marijuana found in the squad car.
Wagner testified that his squad car is designed so the back seat can be easily removed to allow officers to check for weapons or contraband that might be stuffed into the seat or placed behind or underneath it.
On September 29, 2003, the State filed a trial information charging Webster with possession of marijuana. A jury found Webster guilty as charged. The district court sentenced Webster on October 12, 2004, to serve sixty-nine days in the Woodbury County Jail and gave him credit for sixty-nine days previously served. The court also ordered him to pay a fine of $250, but suspended payment of the fine. Webster now appeals.
II. Sufficiency of Evidence
Webster first claims the record contains insufficient evidence to support his conviction because the evidence fails to prove the elements of constructive possession of marijuana. We review Webster's claim that there is insufficient evidence to support his conviction for the correction of errors at law, and we will uphold the verdict if substantial evidence supports it. State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005). We consider evidence substantial if it "would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt." State v. Acevedo, 705 N.W.2d 1, 3 (Iowa 2005). We consider all the evidence in the record when we make sufficiency of the evidence determinations, 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, we view the evidence in the light most favorable to the State, and we include legitimate inferences and presumptions that may be reasonably deduced from evidence in the record. Id.
To establish that Webster unlawfully possessed marijuana, the State must prove that he: (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. Reeves, 209 N.W.2d 18, 21 (Iowa 1973). Proof that Webster possessed opportunity of access to the seat where the marijuana was found will not, without more, support a finding of unlawful possession. Id. at 22.
Actual possession occurs when a controlled substance is found on a defendant's person. Carter, 696 N.W.2d at 38. Because no marijuana was discovered on Webster's person, the State had to proceed under a theory of constructive possession. Constructive possession occurs when a defendant has knowledge of the presence of the controlled substance and has the authority or right to maintain control of it. State v. Bash, 670 N.W.2d 135, 138 (Iowa 2003).
In this case, the record shows that Webster's conviction for possession of marijuana is supported by sufficient evidence. The car in which Webster and Beardshear had been riding smelled strongly of marijuana. Officer Wagner searched the rear seat of his patrol car when he went on duty and discovered no contraband. Webster and Beardshear were the officer's first arrests of the day. Wagner searched the rear seat of his patrol car immediately after Webster and his companion were removed from the car and discovered a bag of marijuana. The marijuana was located beneath the seat on Webster's side of the car. Officer Wagner testified that even though Webster was handcuffed, it would have been possible for him to stuff the bag of marijuana into the seat.
A rational jury could reasonably conclude that only Webster could have hidden the bag of marijuana where it was discovered in the patrol car. Officer Wagner testified that even if Beardshear initially had the bag on her person, she would have had to give the bag to Webster for it to end up where it was discovered because Webster was seated between where the marijuana was discovered and where Beardshear was seated. A jury could further conclude that the act of hiding the marijuana shows that Webster knew of the nature and presence of the controlled substance and exercised dominion and control over it.
When we view all the evidence in the light most favorable to the State, we conclude there was sufficient evidence to support Webster's conviction for possession of marijuana.
III. Ineffective Assistance of Counsel
Webster claims that his trial counsel was ineffective for failing to object to jury instructions five and twelve and for failing to object to evidence of his outstanding arrest warrant.
We review Webster's ineffective assistance of counsel claims de novo. State v. Oetken, 613 N.W.2d 679, 683 (Iowa 2000). Usually, we preserve ineffective assistance claims for postconviction relief. Kellogg v. State, 288 N.W.2d 561, 563 (Iowa 1980). However, we resolve the claims on direct appeal if the record adequately presents the issue. State v. Miranda, 672 N.W.2d 753, 758 (Iowa 2003). We find the record in this case sufficient to rule on Webster's ineffective assistance claims on direct appeal.
Webster possesses 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 that counsel was ineffective, Webster must demonstrate that (1) counsel failed to perform an essential duty and (2) prejudice resulted from this omission. State v. Miles, 344 N.W.2d 231, 233-34 (Iowa 1984). To prove the first prong of the test, Webster "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 prove the second prong, Webster must demonstrate a reasonable probability that, but for his trial counsel's errors, the result of the proceeding would have differed. Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 698 (1984); State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987). If Webster is unable to prove either the duty prong or the prejudice prong of the test, his ineffective assistance claims will fail. State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003).
Webster contends his trial attorney should have objected to jury instruction number five — the reasonable doubt instruction. He contends the instruction given by the trial court is a misstatement of the law that places the burden of proof on him to prove his innocence. Webster suggests the reasonable doubt instruction recommended by the Iowa Uniform Criminal Instructions should have been given.
Jury instruction number five states:
A reasonable doubt is a doubt based upon reason and common sense, and not the mere possibility of innocence. A reasonable doubt is the kind of doubt that would make a reasonable person hesitate to act. Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it. However, proof beyond a reasonable doubt does not mean proof beyond all possible doubt.
The trial court may phrase instructions in its own words, provided the instructions given fully and fairly advise the jury of the issues it is to decide and the law which is applicable. State v. Liggins, 557 N.W.2d 263, 267 (Iowa 1996). We review jury instructions collectively, rather than separately in evaluating their sufficiency. State v. Fintel, 689 N.W.2d 95, 104 (Iowa 2004). When we consider the instructions given in this case as a whole, we believe they accurately state that Webster was presumed innocent and that the State possessed the burden of proving guilt beyond a reasonable doubt. State v. Tubbs, 690 N.W.2d 911, 916 (Iowa 2005) (holding that use of the terms "innocent" or "innocence" in instructions to the jury about determining the guilt or innocence of the defendant separately for each count did not impermissibly imply that the defendant must prove his own innocence). We find that Webster's counsel was not ineffective for failing to object to jury instruction number five.
Next, Webster alleges that his trial counsel was ineffective for failing to object to jury instruction number twelve. He concedes that the instruction correctly outlines the proof necessary to establish constructive possession. However, he maintains that the added statement about circumstantial evidence in the instruction is cumulative of instruction number seven (which also addresses circumstantial evidence) and suggested to the jury that it could give more credence to circumstantial evidence. We do not believe the trial court's instructions as a whole demonstrate a bias toward circumstantial evidence vis-à-vis direct evidence. Moreover, we find no reasonable probability that the result of this case would have been different if the district court had omitted the last sentence of instruction number twelve. Therefore, we reject this assignment of error.
Jury instruction number twelve states:
"Constructive possession" of a controlled substance is established by proof that:
1. the person exercised dominion and control over the marijuana;
2. the person had knowledge of its presence; and
3. the person had knowledge that the material was marijuana.
The necessary elements listed above may be established by circumstantial evidence and any reasonable inference drawn from such evidence.
Webster's final claim is that trial counsel was ineffective for failing to object when Officer Wagner testified that Webster had an outstanding warrant for his arrest. Webster maintains that this evidence was highly prejudicial and consisted of inadmissible prior bad acts testimony in violation of Iowa Rules of Evidence 5.402, 5.403, and 5.404(b). We find that the State properly offered Officer Wagner's testimony about the arrest warrant to explain why the officer stopped the car and arrested Webster. Furthermore, the evidence was not unfairly prejudicial because the testimony did not specify the reason for the arrest warrant, and Officer Wagner only mentioned it briefly to explain why he arrested Webster. We conclude that Webster's counsel was not ineffective for failing to object to the challenged testimony, and Webster suffered no prejudice by its admission.
At trial, Officer Wagner offered the following testimony: "Randy Webster was seen inside the vehicle, and he currently had a warrant for his arrest. So at approximately that time, I located the vehicle at West 19th and Casselman. And I performed a traffic stop on it."
IV. Conclusion
Because we find no merit in any of Webster's appellate claims, we affirm his conviction for possession for marijuana.