from the Iowa District Court for Monona County, Steven J.
Madison appeals his conviction of possession of a controlled
substance, marijuana (first offense). AFFIRMED.
P. Beauvais Jr., Sioux City, for appellant.
J. Miller, Attorney General, and Bridget A. Chambers,
Assistant Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
VAITHESWARAN, Presiding Judge.
trooper stopped a vehicle driven by Johnny Madison. In a
subsequent search of the vehicle, the trooper found a bag of
marijuana on the center console next to Madison, small jars
of marijuana residue in the back seat, and two bags of
marijuana inside a pair of shoes belonging to Madison.
State charged Madison with possession of a controlled
substance, marijuana (first offense). See Iowa Code
§ 124.401(5) (2013). A jury found him guilty as charged.
On appeal, Madison contends his trial attorney was
ineffective in failing to object to a jury instruction that
defined possession as including "actual" as well as
"constructive" possession. In his view, there was
insufficient evidence of actual possession to incorporate
this language in the instruction. See State v.
Maxwell, 743 N.W.2d 185, 196 (Iowa 2008) (stating a
district court should not give an instruction that is
unsupported by the evidence).
prevail on his ineffective-assistance-of-counsel claim,
Madison must prove the breach of an essential duty and
prejudice. Strickland v. Washington, 466 U.S. 668,
687 (1984). "Prejudice is established if 'there is a
reasonable probability that, but for the counsel's
unprofessional errors, the result of the proceeding would
have been different.'" State v. Harris, 891
N.W.2d 182, 185-86 (Iowa 2017) (quoting State v.
Reynolds, 746 N.W.2d 837, 845 (Iowa 2008)); accord
Strickland, 466 U.S. at 694. While we normally preserve
these claims for postconviction relief, we find the record
adequate to address this claim on direct appeal. See
State v. Virgil, 895 N.W.2d 873, 879 (Iowa 2017);
State v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015).
2. Possession: The law recognizes several kinds of
possession. A person may have actual possession or
constructive possession. A person may have sole or joint
possession. A person who has direct physical control over a
thing on his person is in actual possession of it. A person
who, although not in actual possession, has both the power
and the intention at a given time to exercise dominion or
control over a thing, either directly or through another
person or persons, is in constructive possession of it. A
person's mere presence at a place where a thing is found
or proximity to the thing is not enough to support a
conclusion that the person possessed the thing. If one person
alone has actual or constructive possession of a thing,
possession is sole. If two or more persons share actual or
constructive possession of a thing, possession is joint.
Whenever the word "possession" is used in the
instructions above, it includes actual as well as
constructive possession and sole as well as joint possession.
Cf. Iowa Crim. Jury Instructions 200.47 (2015)
(same). Assuming without deciding that the evidence was
insufficient to support the "actual possession"
portion of this instruction, Madison cannot establish
Strickland prejudice. In closing arguments, the
prosecutor only argued for a finding of constructive
possession. He stated, "There are a number of different
possession possibilities that the instruction defines. It
talks about actual possession . . ., but in this case, ladies
and gentlemen, we are talking about constructive
possession." Later, he reiterated, "[I]n this case,
we are talking about constructive possession. Constructive
possession." Because the prosecutor withdrew actual
possession as an alternative, there is no reasonable
probability of a different outcome had counsel objected to
the actual possession language in the instruction. See
Thorndike, 860 N.W.2d at 323 (finding no
Strickland prejudice in counsel's failure to
object to an alternative in an instruction, where "the
State effectively removed that alternative from the
jury's consideration during its closing argument").
also asserts he "may have additional claims based upon
ineffective assistance of counsel that are not immediately
apparent from the record" and "any other claims
based upon ineffective assistance of counsel . . . should be
preserved for a post-conviction [relief] proceeding."
"[A]n ineffective-assistance-of-counsel claim 'need
not be raised on direct appeal . . . in order to preserve the
claim for postconviction relief purposes.'"