from the Iowa District Court for Webster County, Kurt L.
Gully appeals his convictions of several drug- and
gun-related crimes and the sentences imposed.
Charles J. Kenville of Kenville Law Firm, PC, Fort Dodge, for
J. Miller, Attorney General, and Kevin Cmelik and Sharon K.
Hall, Assistant Attorneys General, for appellee.
Vaitheswaran, P.J., and Doyle and Mullins, JJ.
Gully appeals his convictions of several drug- and
gun-related crimes and the sentences imposed. He contends:
(1) the district court erred in denying his motion to
suppress evidence obtained pursuant to a search warrant
because the warrant application lacked probable cause; (2)
the district court abused its discretion in denying his
motions for a mistrial; (3) there was insufficient evidence
to support his convictions and the district court therefore
erred in denying his motions for judgment of
acquittal; (4) the sentences imposed amount to cruel
and unusual punishment because his prior convictions
supporting sentencing enhancement were committed when he was
a juvenile; and (5) his trial counsel rendered ineffective
assistance in failing to object to the racial makeup of the
Background Facts and Proceedings
following facts can be gleaned from the suppression record.
In the early morning hours of November 27, 2015, a shooting
occurred outside a pub in Fort Dodge. Upon investigation, the
Fort Dodge Police Department identified Gully, Torre Mosley,
and Kwane Wheat as suspects in the shooting. Detective Tom
Steck applied for a search warrant for the residences in
which he believed the three suspects primarily resided to
search for evidence related to the shooting. Based on the
information available and prior investigations, Steck
believed Gully primarily resided with his girlfriend, Krystal
Prince, and their two children in a residence located at 348
Avenue M West, Fort Dodge. In relevant part, the warrant
application provided the following as to Gully's
Through conversations with other officers, confidential
informants, citizens, and through prior personal involvement
and investigation by this officer it is known that GULLY
commonly stays with and lives with his girlfriend, KRYSTAL 
PRINCE . . . at the residence of 348 Ave M West in Fort Dodge
. . . . This officer on multiple occasions has personally
seen GULLY coming and going from this specific residence and
has seen vehicles GULLY drives stay overnight at the
residence on multiple times along with PRINCE operating
vehicles GULLY drives and vi[ce] versa. . . . PRINCE and
GULLY have been involved in a[n] intimate relationship with
one another for over four years and they have two children
together. Officers have responded to this specific residence
multiple times for GULLY. . . . GULLY lists on his Iowa
drivers license information that he lives at [a] residence .
. . in Marshalltown but through multiple investigations this
officer has personally been involved GULLY does not live in
Marshalltown any longer. GULLY has also been known to tell
officers that he lives at the residence of 1128 10th Ave SW
in Fort Dodge with his mother and grandmother. Through
multiple prior investigations this officer has personally
been involved in it is known by this officer and others that
GULLY does not live at this residence nor does he have a
bedroom at the residence. . . . It should also be noted that
this officer personally knows that GULLY's address he has
listed on his current Iowa driver's license is an old
address and he has not changed in at least several months to
. . . .
. . . . It is also known that the three try to disguise their
addresses and stay at multiple residences in attempts to
evade law enforcement but each commonly reside with the
previously listed girlfriends at the previously mentioned
residences. Although the three do stay at other locations the
three primary residences for them have been previously
identified within this affidavit.
to the warrant application were references to two anonymous
tips received by law enforcement, one advising law
enforcement to check the suspects' "baby mommies
houses," and the other specifically advising officers to
check Prince's house. Steck did not request a search
warrant for any of the other residences Gully was potentially
associated with. The warrant application was granted.
the evidence presented at trial, a reasonable jury could make
the following factual findings. Upon the grant of the warrant
application, local law enforcement assembled to execute the
warrant on the residence located at 348 Avenue M West. Upon
executing the search warrant between 7:00 and 8:00 a.m.,
officers found Gully and his two young children in the home.
After officers secured the residence, Sergeant Luke Fleener
of the Webster County Sheriff's Department searched the
main level of the residence. In the kitchen area, Fleener
found a glass jar containing about twenty grams of marijuana,
3.16 grams of cocaine, and 2.34 grams of cocaine base (crack
cocaine); a large number of plastic baggies consistent with
the sale of narcotics; and a small scale commonly used
"to weigh out exact measurements of narcotics."
Matthew Lundberg of the Fort Dodge Police Department searched
the basement of the residence. As a part of his search,
Lundberg checked the area above the basement furnace, where
he ultimately found a dark-colored duffel bag or backpack.
During their inventory of the bag, Lundberg and Fleener found
three handguns, loose ammunition, a plastic bag containing
more than twenty grams of cocaine, and more than six pounds
of marijuana in brick form. Lundberg and Fleener testified to
their assessments that, due to the lack of dust and other
debris on the dark-colored bag, it could not have been stored
above the furnace for very long. No drug paraphernalia
consistent with personal use of the drugs was found in the
residence or on Gully's person. Officers also seized
Gully's cellular phone. A forensic examination was
conducted as to Gully's phone and text messages extracted
from the phone indicated Gully was involved in the sale of
marijuana and cocaine in the weeks prior to the execution of
the search warrant.
to Prince's testimony, she and Gully were not in a
romantic relationship at the time of the above events, but
his presence at her home at this time was a regular
occurrence, despite the fact that Gully lived with his
mother. Prince had to be to work by 6:00 a.m. on the morning
of November 27, and she had previously arranged for
Gully's mother to care for her and Gully's children
that day. Early that morning, however, as Prince was packing
the children's items for the day, Gully showed up at the
residence and advised he could watch the children, who were
still asleep, upon which Prince agreed and left for work.
August and September of 2015, Prince's younger brother,
Nick Dayton, was living in Prince's basement. When shown
pictures of the dark-colored bag, its contents, and the mason
jar during her testimony at trial, Prince stated she had
never seen any of those items before. She indicated none of
the said items could have belonged to Dayton, stating,
"He's just . . . not that kind of a kid."
Prince specifically testified that in the two weeks prior to
the execution of the search warrant on her home, she knew
Gully to be involved in the sale of drugs.
number of the seized items were sent to the state crime lab
for fingerprint and DNA analysis. Four latent fingerprints
belonging to Gully were found on the mason jar found in the
kitchen. Four latent fingerprints, two of which belonged to
Gully,  were found on one of the two Walmart sacks
that contained the bricks of marijuana found in the
dark-colored bag in the basement. Two latent fingerprints
belonging to Gully were found on the plastic
"Glik's" bag that contained two of the firearms
found in the bag in the basement. The criminalist who
analyzed the prints explained that it is possible to transfer
fingerprints from one item to another, but opined none of the
fingerprints he found on these items were transferred. The
DNA profile obtained from one of the firearms that was tested
contained a mixture of DNA from at least three individuals.
Gully, as well as fewer than one out of ten unrelated
individuals, was identified as a possible contributor to the
was charged by trial information with the following crimes:
possession of cocaine with intent to deliver, possession of
cocaine base with intent to deliver, possession of marijuana
with intent to deliver, three counts of felon in possession
of a firearm, and two counts of failure to affix a drug-tax
stamp. As to all three
possession-with-intent-to-deliver charges, the State
additionally alleged that, during the commission of the
crimes, Gully was in the immediate possession or control of a
firearm. See Iowa Code § 124.401(1)(e) (2015).
As to the cocaine and cocaine-base possession charges and the
tax-stamp violations, Gully was alleged to have been a second
or subsequent offender. See id. § 124.411.
Gully was charged as a habitual offender as to all eight
counts. See id. § 902.8.
filed a pretrial motion to suppress the evidence obtained
pursuant to the search warrant, contending, among other
things, "No basis existed for granting the warrant for
the residence in which the state alleged [he] resided."
Following a hearing, the court denied the motion, concluding
the magistrate had a reasonable basis for concluding probable
cause existed to issue the search warrant.
a jury found Gully guilty as charged. The issue of prior
convictions and sentencing enhancement was considered by the
court, and Gully stipulated he was previously convicted of
willful injury causing bodily injury in March 2010 and two
counts of possession of marijuana with intent to deliver in
April 2013, all class "D" felonies.
Gully filed a motion in arrest of judgment and a motion for a
new trial. In his motion in arrest of judgment, Gully
contended the evidence was insufficient to support his
conviction and the court's use of his prior convictions
for sentencing-enhancement purposes amounted to cruel and
punishment because he was a juvenile at the time he committed
those crimes. In his motion for a new trial, Gully repeated
his sufficiency-of-the-evidence argument and additionally
contended, among other things, juror misconduct occurred
during the trial. The court denied the motions and proceeded
sentencing, Gully repeated his argument that the court's
use of his prior convictions for sentencing-enhancement
purposes amounted to cruel and punishment because he was a
juvenile at the time he committed those crimes. The court
rejected the argument and sentenced Gully to three concurrent
terms of incarceration not to exceed thirty years for the
possession-with-intent-to-deliver charges; three concurrent
terms of incarceration not to exceed fifteen years for the
felon-in-possession-of-a-firearm charges; and two concurrent
terms of incarceration not to exceed fifteen years for the
drug-tax-stamp charges. The court ordered the concurrent
drug-possession sentences and concurrent firearms sentences
to be served consecutively for a total term of incarceration
not to exceed forty-five years. The court suspended the
sentences for the drug-tax-stamp charges and, if ever served,
ordered them to be served concurrently with one another and
with all other sentences.
noted, Gully appeals. Additional facts will be set forth
below as are relevant to the issues raised on appeal.
Motion to Suppress
argues the district court erred in denying his motion to
suppress evidence obtained pursuant to the search warrant,
contending the warrant lacked probable cause. We review a
challenge to a search warrant for an alleged lack of probable
cause de novo, based on the totality of the circumstances.
See State v. McNeal, 867 N.W.2d 91, 99 (Iowa 2015).
"[W]e do not make an independent determination of
probable cause," we merely determine "whether the
issuing judge had a substantial basis for concluding probable
cause existed." Id. (quoting State v.
Gogg, 561 N.W.2d 360, 363 (Iowa 1997)).
United States and Iowa Constitutions protect against
unreasonable searches and direct that no warrants shall issue
without probable cause. U.S. Const. amend. IV; Iowa Const.
art. I, § 8; see McNeal, 867 N.W.2d at 99. The
test to ...