Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.
The opinion of the court was delivered by: Potterfield, J.
Anthony Keys appeals from his jury trial and conviction for possession of cocaine with intent to deliver as a habitual offender and second or subsequent offender. AFFIRMED.
Considered by Vogel, P.J., and Potterfield and Doyle, JJ.
Anthony Keys appeals from his jury trial and convictions for possession of cocaine with intent to deliver as a habitual offender and second or subsequent offender, and driving while license barred.*fn1 He argues his counsel was ineffective in failing to object to a jury instruction defining possession. We affirm, finding no prejudice in the failure of Keys' counsel to object to the instruction.
I. Facts and Proceedings.
On February 22, 2011, Anthony Keys was pulled over by police in his vehicle. Once he stopped his vehicle, Keys took off running. An officer pursued him on foot. While running behind a building, Keys stopped, reached toward the ground, and took off running again. The pursuing officer witnessed his behavior from approximately fifty to sixty feet away. After the chase ended, the officer retraced the path and found a baggie in a grate at the location where Keys had paused and reached toward the ground. A search of Keys yielded a cell phone, a digital scale with white powder residue on it, and $327 in cash. Police found marijuana in the car Keys was driving. Further drug paraphernalia and cocaine residue was found in the hotel room where Keys was staying.
The State charged Keys with possession of cocaine with intent to deliver as a habitual offender and second or subsequent offender, possession of a controlled substance-marijuana as a third and habitual offender, and driving while barred. Trial was held November 10, 2011. Regarding the possession counts, the jury was instructed that:
"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 right to maintain control of it, either alone or together with someone else, is in constructive possession of it.
If something is found in a place which is exclusively accessible to only one person and subject to his or her dominion and control, you may, but are not required to, conclude that that person has 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.
Defense counsel made no objection to this instruction. The jury found Keys guilty of possession of cocaine with intent to deliver and driving while his license was barred, but acquitted him on the possession of marijuana count. Keys admitted his previous convictions underlying the sentencing enhancements on the possession of cocaine count. Keys appeals, arguing the jury instruction mischaracterized the law on possession, and that his counsel provided ineffective representation when he failed to object to the instruction.
We review claims of ineffective assistance of counsel de novo. State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). "To succeed on an ineffective-assistance-of-counsel claim, a defendant must show by a preponderance of the evidence that: (1) counsel failed to perform an essential duty; and (2) prejudice resulted. We can affirm on ...