from the Iowa District Court for Polk County, Scott D.
defendant appeals his convictions for possession of
methamphetamine, third offense, and driving while barred as a
habitual offender. AFFIRMED.
M. Flanagan of Sporer & Flanagan, P.L.L.C., Des Moines,
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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.
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
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 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.
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.
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 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)).
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 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
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.
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 lacks prejudice, it can be decided on
that ground alone without deciding whether the attorney
performed deficiently." Id. at ...