                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0123
                              Filed March 20, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

QUAYSHAN LAMONTEZ MOORE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, John D. Telleen

(trial) and Henry W. Latham II (sentencing), Judges.



      Quayshan Moore appeals from judgment and sentences following his

multiple convictions. AFFIRMED.



      Eric D. Tindal of Keegan Tindal & Mason, Iowa City, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



      Considered by Potterfield, P.J., and Tabor and Bower, JJ.
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POTTERFIELD, Presiding Judge.

       Quayshan Moore appeals following a jury trial that resulted in convictions

for possession of crack cocaine with intent to deliver, in violation of Iowa Code

section 124.401(1)(c)(3) and 124.401(1)(e) (2017) (firearm enhancement); failure

to affix a drug tax stamp, in violation of section 453B.12; possession of a firearm

by a domestic violence offender, in violation of section 724.26(2)(a); carrying

weapons, in violation of section 724.4(1); interference with official acts, in

violation of section 719.1(1)(f); and assault causing bodily injury, in violation of

section 708.2(2).     Moore challenges the sentences imposed and claims trial

counsel was ineffective in stipulating that he was a prohibited person and in

failing to challenge the sufficiency of evidence of his intent to deliver cocaine.

       A. Sentencing.

       Moore first asserts the district court failed to state sufficient reasons for

imposing consecutive sentences. We review sentencing decisions for errors of

law. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We will only reverse

the district court if the court abused its discretion or if there is a defect in the

sentencing procedure. State v. Letscher, 888 N.W.2d 880, 883 (Iowa 2016).

       At the sentencing hearing, the State noted that count one, the drug

offense with the firearm enhancement, required incarceration.              The State

recommended that the sentence on that count run consecutive “at a minimum at

least to” the conviction of possession of a firearm as a domestic violence

offender, noting the two counts “are absolutely separate and distinct acts of

criminal activity.”   The defense asked that all sentences run concurrently

because Moore was facing a twenty-year sentence on the first count and “to
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keep him in there for an extra five . . . doesn’t do him any more service in his

rehabilitation.”

       Here, the sentencing proceeding involved the six counts following the jury

trial, as well as three other charges to which Moore pled guilty.        The court

imposed terms of incarceration on all nine charges and stated:

              As to any consecutive or concurrent sentencing in all of
       these cases, it is the court’s determination that the State’s
       recommendation as to Count 3 in FECR386810 [possession by a
       prohibited person] is appropriate given the severity of the offenses,
       and I will make that count consecutive, but I will deny the State’s
       other requests as to the other files. The other files will be served
       concurrently. I feel for rehabilitation to occur in another additional
       five years of incarceration is not necessary. I would hope that Mr.
       Moore has learned from the seriousness of these offenses and the
       sentencing that I have imposed at this time.

       A court imposing consecutive sentences must state on the record its

reasons for imposing consecutive sentences. State v. Jacobs, 607 N.W.2d 679,

690 (Iowa 2000). At minimum, a cursory explanation must be provided to allow

review of the trial court’s discretionary action. Id. Our review of the sentencing

transcript shows the court gave adequate reasons for requiring the consecutive

sentences.

       B. Ineffective assistance.

               1. Stipulation. Moore next asserts his counsel was ineffective in

stipulating that he was a person prohibited from carrying a firearm and for failing

to challenge the sufficiency of the evidence of his intent to deliver to sustain the

conviction for possession with intent to deliver.

       We review ineffective-assistance-of-counsel claims de novo. Nguyen v.

State, 878 N.W.2d 744, 750 (Iowa 2016). The proponent must show (1) counsel
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breached an essential duty and (2) prejudice resulted.           See Strickland v.

Washington, 466 U.S. 668, 687 (1984).

       A defendant may raise an ineffectiveness claim on direct appeal if they

have “reasonable grounds to believe that the record is adequate to address the

claim on direct appeal.” Iowa Code § 814.7(2). Ordinarily, we preserve such

claims for postconviction-relief proceedings. State v. McNeal, 867 N.W.2d 91,

105 (Iowa 2015).

       “We prefer to [p]reserve such questions for postconviction
       proceedings so the defendant’s trial counsel can defend against the
       charge.” This is especially appropriate when the challenged
       actions concern trial strategy or tactics counsel could explain if a
       record were fully developed to address those issues. “We will
       resolve the claims on direct appeal only when the record is
       adequate.” It is a rare case in which the trial record alone is
       sufficient to resolve a claim on direct appeal.

Id. at 105-06 (citations omitted).

       This is not one of those rare cases where the trial record is alone sufficient

to resolve the claim related to the stipulation. Moore challenges the adequacy of

the underlying no-contact-order hearing for which we have no record. Moreover,

there may well be tactical reasons for the stipulation that he was a prohibited

person.    Therefore, we preserve the claim for possible postconviction-relief

proceedings. See State v. Clay, 824 N.W.2d 488, 501-02 (Iowa 2012).

              2. Sufficiency of evidence of intent to deliver. With respect to his

claim that counsel should have challenged the sufficiency of the evidence of his

intent to deliver, we conclude Moore cannot prove prejudice because there is

substantial evidence from which the jury could find an intent to deliver.
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       “Because it is difficult to prove intent by direct evidence, proof of intent

usually consists of circumstantial evidence and the inferences that can be drawn

from that evidence.” State v. Grant, 722 N.W.2d 645, 647-48 (Iowa 2006).

       On August 16, 2017, law enforcement responded to a 911 call from

Moore’s ex-wife reporting Moore had hit her and was waving a gun. Moore left

the residence before police arrived. However, police learned Moore had packed

a bag and called someone to pick him up before leaving the residence. A person

matching the ex-wife’s description of Moore was seen by Captain Keith Kimball a

few blocks away sitting at the end of a driveway. Captain Kimball observed the

person get into a car that pulled up. The captain followed the car and, when

other police vehicles were nearby, activated his emergency lights.

       As soon as Captain Kimball turned on his lights, the suspect opened the

back door of the car, jumped out, and ran. Captain Kimball stopped and ran after

the man, as did Detective James Bennett. Detective Bennett testified Moore had

outstanding warrants and was “known to run.” The detective noticed there was a

heavy object “swaying” in the suspect’s pocket as he ran. The man ignored

orders to stop and ran into a creek.      Detective Bennett pursued him over a

retaining wall and into the creek. When the man climbed out of the creek on the

other side, police intercepted him. The man denied he was Moore. However, his

ex-wife arrived at the scene and identified Moore. He continued to deny his

identity until his fingerprints were taken and compared to those on file.

       Detective Bennett found a plastic baggie floating on the surface of the

creek through which Moore had run. The baggie contained approximately twelve

rocks of crack cocaine weighing 3.94 grams wrapped in three sandwich bags.
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Detective Bennett also found a $20 bill in the creek near the cocaine. About six

to eight feet away from the drugs, Detective Bennett found a black handgun.

       At trial, Sergeant Douglas Scott, who supervises the Bettendorf Police

narcotics unit, testified that the dosage unit for crack cocaine is approximately

one-tenth of a gram and sells for approximately ten to twenty dollars. In his

experience, Sergeant Scott did not consider 3.94 grams—thirty-nine units

worth—of crack cocaine to be a personal use amount.

       “The quantity and packaging of a controlled substance may be indicative

of an intent to deliver.” State v. See, 532 N.W.2d 166,169 (Iowa Ct. App. 1995).

Sergeant Scott’s expert opinion was that the amount and packaging of the crack

cocaine found in the creek was not for personal use. Viewing the evidence in the

light most favorable to the State and recognizing “[t]he jury was free to believe or

disbelieve the defendant’s theory that the packages were more consistent with

personal use rather than distribution,” there was substantial evidence of intent to

deliver to sustain the conviction. See id. Moore cannot prove prejudice on this

claim of ineffective assistance of counsel.

       We affirm the convictions and sentences. We preserve Moore’s claim that

counsel was ineffective in stipulating Moore was a person prohibited from

possessing a firearm.

       AFFIRMED.
