                    IN THE COURT OF APPEALS OF IOWA

                                 No. 15-0649
                              Filed April 6, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ERIC ROBERT FREIHAGE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Harrison County, Mark J. Eveloff,

Judge.



      Eric Freihage appeals his conviction for possession of marijuana and

failure to affix a drug tax stamp. AFFIRMED.




      Patrick A. Sondag of Sondag Law Office, Council Bluffs, for appellant.

      Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee.




      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

      Eric Freihage appeals following his convictions for possession of a

controlled substance and failure to affix a drug tax stamp. He claims there was

insufficient evidence to support his conviction for possession of a controlled

substance, the district court should have given his requested jury instruction, and

his trial counsel was ineffective.     We find substantial evidence supports

Freihage’s conviction for possession of a controlled substance and the court did

not abuse its discretion by declining to instruct the jury. We preserve Freihage’s

ineffective-assistance-of-counsel   claim   for   potential   post-conviction   relief

proceedings.

I.    BACKGROUND FACTS AND PROCEEDINGS

      On November 7, 2014, Iowa State Patrol Trooper Halverson was patrolling

in Pisgah, Iowa, when he observed a silver van, traveling in the opposite

direction, occupied by two individuals, Freihage and Jesse Hurst, who were not

wearing seatbelts. Halverson made a U-turn in his patrol car and followed the

van as it pulled into a gas-station parking lot. Halverson parked his car behind

the van and performed a traffic stop. As Halverson spoke with Freihage (the

driver of the van) and Hurst (who was sitting in the front passenger seat), he

detected a “strong odor of burnt marijuana coming from the vehicle.” Halverson

brought Freihage back to the patrol car and left Hurst in the van. Halverson

maintained a view of Hurst; Hurst did not make any suspicious movements

during this time. After obtaining Freihage’s information, Halverson performed a

“pat-down of his person,” placed him in handcuffs, and stated he was not under

arrest but was being detained for Halverson to continue investigating.
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          After detaining Freihage, Halverson returned to the van and opened its

front door. He noticed a “large gallon, ziplock bag of marijuana” on the floor of

the van behind the passenger seat. The bag was in plain view and contained

6.91 ounces of marijuana. Halverson performed a “pat-down” of Hurst and found

a small amount of raw marijuana in the front pocket of his pants. Hurst admitted

to smoking marijuana earlier in the day but denied possession of the ziplock bag

of marijuana.     Halverson placed Freihage and Hurst under arrest.     Freihage

expressed no surprise at his own arrest but inquired as to why Hurst was under

arrest.

          On December 8, Freihage was charged with possession of a controlled

substance (marijuana), in violation of Iowa Code section 124.401(5) (2013) and

failure to affix a drug tax stamp, in violation of Iowa Code section 453B.12. He

pled not guilty and demanded a speedy trial. Subsequently, Freihage filed a

motion to suppress the evidence collected from the van and a motion to dismiss.

On February 2, 2015, a hearing was held on Freihage’s motions and the court

denied his motion to dismiss and ruled evidence obtained from the van was

admissible. A jury trial was held on February 10, and Freihage was found guilty

of possession of a controlled substance and failure to affix a drug tax stamp. On

March 19, Freihage filed combined motions for new trial, in arrest of judgment

and judgment of acquittal. The court denied Freihage’s motions and sentenced

him to a five year term of incarceration.

          Freihage now appeals.
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II.    STANDARD AND SCOPE OF REVIEW

       A motion for judgment of acquittal is a means of challenging the

sufficiency of the evidence, and we review such claims for correction of errors at

law. State v. Serrato, 787 N.W.2d 462, 465 (Iowa 2010). “Evidence is sufficient

to withstand a motion for judgment of acquittal when, viewing the evidence in the

light most favorable to the State and drawing all reasonable inferences in the

State’s favor, ‘there is substantial evidence in the record to support a finding of

the challenged element.’” State v. Williams, 695 N.W.2d 23, 28 (Iowa 2005)

(quoting State v. Bayles, 551 N.W.2d 600, 608 (Iowa 1996)).            “Substantial

evidence is that upon which a rational trier of fact could find the defendant guilty

beyond a reasonable doubt.” State v. Hagedorn, 679 N.W.2d 666, 668–69 (Iowa

2004). In reviewing a challenge to the sufficiency of the evidence, we view the

evidence in the light most favorable to the State. Id. We give consideration to all

of the evidence, not just that which supports the verdict, including reasonable

inferences which could be derived from all the evidence. Id.

       “We review challenges to jury instructions for correction of errors at law.

We review the related claim that the trial court should have given the defendant’s

requested instructions for an abuse of discretion.” State v. Becker, 818 N.W.2d

135, 140 (Iowa 2012).

       Ineffective-assistance-of-counsel claims are reviewed de novo. State v.

Ambrose, 861 N.W.2d 550, 555 (Iowa 2015). We look to see whether under the

entire record and the totality of the circumstances counsel’s performance was

within the range of normal competency. Id.
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III.   MERITS

       A.     Constructive Possession

       Freihage claims the district court erred by denying his motion for judgment

of acquittal as there was insufficient evidence to demonstrate he constructively

possessed the marijuana found in the van.

       Possession can be actual or constructive. State v. Maxwell, 743 N.W.2d

185, 193 (Iowa 2008). Possession is actual when the controlled substance is

found on the defendant’s person, and possession is constructive when the

defendant has knowledge of the presence of the controlled substance and the

authority or right to maintain control over it. State v. Carter, 696 N.W.2d 31, 38

(Iowa 2005). If the controlled substance was found in a place exclusively within

the defendant’s control, the defendant’s knowledge of its presence and the

defendant’s ability to maintain control over it can be inferred. State v. Reeves,

209 N.W.2d 18, 23 (Iowa 1973). If the premises are not exclusively within the

defendant’s possession, however, no inferences can be made and constructive

possession must be proven. Id.

       In determining constructive possession, we look to the following factors:

       (1) incriminating statements made by the person; (2) incriminating
       actions of the person upon the police’s discovery of a controlled
       substance among or near the person’s personal belongings; (3) the
       person’s fingerprints on the packages containing the controlled
       substance; and (4) any other circumstances linking the person to
       the controlled substance.

Maxwell, 743 N.W.2d at 194. Where, as in this case, the contraband is found in

a vehicle occupied by more than one person, we also consider the following

additional factors:
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       (1) was the contraband in plain view, (2) was it with defendant’s
       personal effects, (3) was it found on the same side of the car seat
       as the defendant or immediately next to him, (4) was the defendant
       the owner of the vehicle, and (5) was there suspicious activity by
       the defendant.

See State v. Atkinson, 620 N.W.2d 1, 4 (Iowa 2000). Even if some factors are

present, the court is still required to determine whether all the facts and

circumstances create a reasonable inference that the person knew of the

presence of the controlled substance and had control and dominion over it.

Maxwell, 743 N.W.2d at 194.

       In denying Freihage’s motion for judgment of acquittal, the court reasoned:

              In regard to the possession, at this time, we’ve had the only
       other occupant of the vehicle testify that it is not his. In regards to
       the defendant saying there were no incriminating statements, as
       [the prosecutor] pointed out, the defendant asking the officer what
       his passenger was being charged for and not himself at the initial
       time, could be taken to be an incriminating statement but also with
       the only other occupant of that vehicle testifying that it was not his, I
       would deny the motion in regards to the possession, constructive
       possession.

       Viewing the evidence in the light most favorable to the State, we agree

with the district court that substantial evidence supports Freihage’s conviction. In

addition to the evidence listed by the court, evidence showing Freihage

constructively possessed the marijuana includes the fact his wife was the owner

of the vehicle, the fact the marijuana was placed within reach of the driver’s seat

and not easily accessed by someone sitting in the passenger seat, and that the

trier of fact could infer Hurst was too “skinny” to have concealed the marijuana

bag on his person prior to the traffic stop. We also note that Trooper Halverson

kept watch on the vehicle while Freihage was in the squad car and noticed no
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unusual actions by Hurst. We affirm Freihage’s conviction for possession of a

controlled substance.

       B.     Jury Instructions

       Freihage claims the district court abused its discretion by instructing the

jury pursuant to a uniform jury instruction rather than the more particularized

instruction requested by Freihage. Specifically, Freihage claims the instruction

given to the jury did not fully encapsulate the theory of his defense: lack of proof

he knowingly possessed any marijuana and it was actually Hurst’s marijuana.

       “[T]he court is not required to give any particular form of an instruction;

rather, the court must merely give instructions that fairly state the law as applied

to the facts of the case.” State v. Marin, 788 N.W.2d 833, 838 (Iowa 2010). “Our

review is to determine whether the challenged instruction accurately states the

law and is supported by substantial evidence.” State v. Hanes, 790 N.W.2d 545,

548 (Iowa 2010). Instructions must correctly state the law, but they do not need

to “contain or mirror the precise language of the applicable statute.” State v.

Schuler, 774 N.W.2d 294, 298 (Iowa 2009). “As we have noted in the past, ‘trial

courts should generally adhere to the uniform instructions.’” State v. Becker, 818

N.W.2d 135, 143 (Iowa 2012) (citation omitted).

       Here, the jury received the following instruction on 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]
       [her] 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
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      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 or a thing, possession is joint.
             Whenever the word “possession” has been used in these
      instructions, it includes actual as well as constructive possession
      and sole as well as joint possession.

Freihage proposed the following additions to this instruction:

             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 is in proximity to the
      thing is not enough to support a conclusion that the person
      possessed the thing.
             Where the accused has not been in exclusive possession of
      the premises but only in joint possession, knowledge of the
      presence of the contraband on the premises and the ability to
      maintain control over the contraband by the accused will not be
      inferred but must be established by proof.
             Proof of opportunity of access to a place where contraband
      is found will not, without more, support a finding of unlawful
      possession. The authority or right to maintain control includes
      something more than the “raw physical ability” to exercise control
      over the controlled substance. The defendant must have some
      proprietary interest or an immediate right to control or reduce the
      controlled substance to the defendant’s possession.
             Knowledge alone is not enough to establish constructive
      possession. The evidence must also support an inference that he
      had the ability to maintain control of the controlled substance.

      The court declined to add Freihage’s proposed language to the instruction,

reasoning:

             The court did review the proposed instruction from the
      defense in regards to constructive possession and the court did
      determine the model instruction would be more appropriate in this
      case. I found it to be less confusing and, in addition, as [the
      prosecutor] had pointed out, obviously the cases cited and case law
      set forth, the court has no disagreement that’s what those cases
      say, but they are more defense oriented. And to balance that out
      with a state case or two or—I’m sorry—a case or two that went in
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         favor of the State, would just be way too wordy and confusing to the
         jury. So at this time, the Court will stand by the Proposed
         Instruction 14, which is the model instruction.

         While it is true Freihage’s instruction accurately stated the law in a more

in-depth manner, the district court did not abuse its discretion by submitting the

uniform instruction to the jury. The uniform instruction used to define possession

is an accurate statement of our caselaw definition of possession (as outlined

above in subsection A). “When the instructions already accurately state the law,

the defendant is not entitled to have his proposed instruction submitted to the

jury.”   Id. at 147 (declining to find the district court abused its discretion for

declining to give the defendant’s “more coherent and concise” instruction in place

of its instruction that accurately stated the law); see, e.g., State v. Peniska, No.

13-1683, 2014 WL 6681397, at *6 (Iowa Ct. App. Nov. 26, 2015) (affirming the

use of the uniform jury instruction on possession when a more particularized

instruction had been proposed by the defendant). We affirm the district court’s

decision to deny the submission of Freihage’s more particularized possession

instruction to the jury.

         C.    Ineffective Assistance

         Freihage claims his trial counsel provided ineffective assistance by failing

to request the jury be instructed on general criminal intent, knowledge, and

corroboration of accomplice testimony.

         “If an ineffective-assistance-of-counsel claim is raised on direct appeal

from the criminal proceedings, we may decide the record is adequate to decide

the claim or may choose to preserve the claim for postconviction proceedings.”

State v. Straw, 709 N.W .2d 128, 133 (Iowa 2006). Upon our review of the
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record, we find it inadequate to address Freihage’s ineffective-assistance-of-

counsel claim. We preserve this claim for any potential postconviction relief

proceedings.

      AFFIRMED.
