Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.
Untril Overstreet appeals his judgment and sentence for possession of crack cocaine with intent to deliver and failure to affix a drug tax stamp.
Steven J. Drahozal of Drahozal Law Office, P.C., Dubuque, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Michael J. Walton, County Attorney, and Melisa Zaehringer, Assistant County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
Untril Overstreet appeals his judgment and sentence for possession of crack cocaine with intent to deliver and failure to affix a drug tax stamp. He contends his trial attorney was ineffective in failing to: (1) argue that the evidence was insufficient to establish he possessed the crack cocaine and (2) seek the exclusion of what he characterizes as irrelevant and prejudicial evidence.
I. Sufficiency-of-the-Evidence Claim
Overstreet contends the evidence was insufficient to establish he possessed crack cocaine. He raises the argument under an ineffective- assistance-of-counsel rubric because his attorney did not challenge this element in his motion for judgment of acquittal. See State v. Truesdell, 679 N.W.2d 611, 615-16 (Iowa 2004) ("To preserve error on a claim of insufficient evidence for appellate review in a criminal case, the defendant must make a motion for judgment of acquittal at trial that identifies the specific grounds raised on appeal . . . . The failure of trial counsel to preserve error at trial can support an ineffective assistance of counsel claim."). While we generally preserve ineffective-assistance-of-counsel claims for postconviction relief, a claim based on the sufficiency of the evidence "is a matter that normally can be decided on direct appeal." Id. at 616. That is the case here.
To prevail, Overstreet must show that counsel (1) failed to perform an essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687 (1984). Our review is de novo. State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008).
The jury was instructed the State would have to prove the following elements of possession of crack cocaine with intent to deliver:
1. On or about the 12th day of November 2011, the defendant knowingly possessed crack cocaine.
2. The defendant knew that the substance he possessed was crack cocaine.
3. The defendant possessed the substance with the specific intent to deliver a ...