from the Iowa District Court for Scott County, Paul L. Macek
(trial) and Stuart P. Werling (sentencing), Judges.
appeals his conviction for delivery of a controlled substance
M. Phelps, Davenport, for appellant. Thomas J. Miller,
Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., Bower, J., and Goodhue, S.J.
Duncan appeals his conviction for delivery of a controlled
substance (methamphetamine). We determine there is sufficient
evidence in the record to support Duncan's conviction. We
find the district court did not abuse its discretion in its
response to the jury's questions. We find the district
court did not err in determining Iowa Code section 124.411
(2015) could be applied to enhance Duncan's sentence. We
conclude all of Duncan's claims of ineffective assistance
by defense counsel should be preserved for possible
postconviction proceedings. We affirm Duncan's conviction
Background Facts & Proceedings
November 3, 2015, Officer Andrew Raya, who was working
undercover with the Quad-City Metropolitan Enforcement Group
(MEG), made arrangements to purchase 3.5 grams of
methamphetamine from Duncan for $315. Officer Raya met Duncan
in a Hy-Vee parking lot in Davenport at about 1:35 p.m.
Duncan was sitting in the driver's seat of a gold
Cadillac. One of the surveillance agents for the purchase was
Special Agent Jereme Hatler of the United States Drug
Enforcement Administration, who stated he observed Officer
Raya approach "a male human being" in a gold
Cadillac. Officer Patrick Mesick, who was also with the MEG,
stated he observed Duncan driving a gold Cadillac to the
Hy-Vee parking lot.
was charged with delivery of a controlled substance
(methamphetamine), in violation of Iowa Code section
124.401(1)(c)(6), a class "C" felony. The State
also alleged Duncan was a habitual offender and would be
subject to a sentencing enhancement under section 124.411 for
committing a second or subsequent drug-related offense.
Duncan gave notice of defenses of entrapment and diminished
waived reporting of the proceedings impaneling the jury.
During the trial, Officer Raya identified Duncan in the
courtroom as the person who sold him methamphetamine. He
noted Duncan had distinctive tattoos on his neck, which he
had observed at the time of the drug transaction. Officer
Mesick testified he was shown a photograph of Duncan before
the sale. He identified Duncan in the courtroom, stating he
resembled the person in the photograph.
the State's evidence, the district court denied
Duncan's motion for directed verdict. Duncan testified he
did not sell methamphetamine to Officer Raya on November 3,
2015. In rebuttal, Officer Raya testified he obtained
Duncan's cell phone number from a confidential informant.
He stated he called the number, set up the drug transaction,
and met Duncan for the drug buy as arranged. Officer Raya
testified he had absolutely no doubt the person he met was
Duncan. The court denied Duncan's renewed motion for a
the jury was deliberating, they sent two questions to the
court, "When judging the credibility of the defendant,
what effect should the defendant's conviction for
burglary [have], if any?" and "Can the lack of
easily obtained evidence be considered when determining
reasonable doubt?" The State suggested telling the jury
to re-read Instructions 7 through 13, which were the
instructions for evaluating the evidence. Defense counsel
stated the jury should be pointed in the direction of
Instructions 10 and 12, "and I don't necessarily
think that that means that they would not consider any of the
other instructions." The district court ruled, "I
think that the general approach is better, " and told
the jury, "Please re-read Instructions 7 through
jury found Duncan guilty of delivery of a controlled
substance. Duncan stipulated to prior convictions for
possession of a firearm as a felon and third-degree burglary,
which were the predicate felonies for the habitual offender
enhancement. He also stipulated to two previous convictions
for sponsoring a gathering where controlled substances were
used, in violation of section 124.407, for the section
124.411 sentencing enhancement.
sentencing hearing, Duncan argued he should not be subject to
the enhancement in section 124.411 because his previous
convictions under section 124.407 involved marijuana. The
court determined Duncan should serve a term of ten years,
which was increased to fifteen as Duncan was a habitual
offender, and then doubled pursuant to section 124.411,
giving Duncan ...