                   IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0909
                             Filed October 29, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TERRELL LAMONT BAILEY,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Des Moines County, Mary Ann

Brown, Judge.



       Terrell Bailey appeals from his convictions for possession of a controlled

substance with intent to deliver and two counts of possession of a controlled

substance. AFFIRMED.



       Thomas Hurd of Glazebrook, Moe, Johnston & Hurd, L.L.P., Des Moines,

for appellant.

       Thomas J. Miller, Attorney General, Alexandra Link and Kevin Cmelik,

Assistant Attorneys General, Patrick C. Jackson, County Attorney, and Tyron T.

Rogers, Assistant County Attorney, for appellee.



       Heard by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
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PER CURIAM

       Terrell Bailey appeals his convictions for possession of marijuana with

intent to deliver and two counts of possession of a controlled substance. Bailey

claims his trial attorney was ineffective in failing to object to the State’s

questioning, which elicited opinions on the ultimate issue of his intent to distribute

the marijuana in his possession. He further claims counsel was ineffective in

failing to object to the jury instruction defining “knowledge.” Therefore, we affirm

the conviction and preserve both ineffective-assistance-of-counsel claims for

postconviction-relief proceedings to allow counsel an opportunity to address the

claims. See State v. Shortridge, 589 N.W.2d 76, 84 (Iowa Ct. App. 1998).

       AFFIRMED.

       All judges concur except Vogel, J., who concurs specially.
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VOGEL, P.J. (concurring specially)

       Given the record now before us, I believe Bailey’s ineffective-assistance

claims can be resolved on direct appeal, and that neither have merit.

Consequently, I would deny both claims rather than preserving them for possible

postconviction relief proceedings.

       The facts of this case are important to Bailey’s ineffective-assistance

claims. In the early morning hours of June 22, 2012, Officer Jason Webster

pulled over a vehicle in which Bailey and three others were passengers. Bailey

was in the back seat. When Officer Webster shone a flashlight on Bailey, the

officer observed what appeared to be marijuana on Bailey’s lap. Bailey was

ordered out of the car, handcuffed, and told he was being detained. Officer

Robert Rohrer, a detective in the Southeast Iowa Narcotics Task Force, was also

on the scene. He attempted to scrape the marijuana off of Bailey’s pants and,

while doing so, a bag of pills fell out of Bailey’s shirt. Bailey was then placed in

the back of the patrol car, at which point Officer Rohrer noticed a bag of

marijuana protruding from Bailey’s pant leg. The bag also contained what was

later determined to be cocaine and four hydrocodone pills, along with the 35.52

grams of marijuana. A further search turned up approximately $100 in Bailey’s

pocket and $400 in his sock.

       Bailey takes issue with three portions of the officers’ testimony. The first

exchange between the State and Officer Webster took place as follows:

             Q: And you’ve indicated that you’ve had many instances
       where you’ve come across individuals who possessed marijuana?
       A: Yes.
             Q: Based on your experience, the amount of marijuana that
       you saw in the baggie, did that appear to you to be a small amount
                                        4


      of marijuana or a more significant amount of marijuana? A: In my
      training and experience, it’s more than personal use, what Mr.
      Bailey had.

      The second exchange was between the State and Officer Rohrer:

              Q: Based upon your experience, both when you were a
      patrol officer and as a member of the task force, in dealing with
      people who you knew to be a user—only users of marijuana, was
      there a range of weights that they would—that they would generally
      possess?
              ....
              A: It’s hard to say in a range-wise, but I would say typically
      under like ten grams, would be what I experience.
              Q: You said under ten grams, but what I’m wondering is
      based on your experience, is there—is there a range within that ten
      gram limit that would be typical for a person who is just a user,
      based on your experience? A: I will say probably between 1.75
      grams and seven and a half grams.
              Q: Okay. Based upon your experience both as a patrol
      officer and your experience on the Drug Task Force, in your
      experience, what is the most marijuana that you have ever
      encountered a person who you knew to be only a user possess?
      A: I think the most I can probably recall would be seven and a half
      to eight grams.
              Q: So would it be correct that a person who possesses thirty-
      five or so grams has many times the amount of marijuana that a
      typical user would possess? A: Yes.
              ....
              Q: Detective Rohrer, based upon your training, your
      education, your experience, and the specific factors of this case, is
      the marijuana that you seized from the Defendant’s pant leg
      consistent with marijuana for sale or marijuana for personal use?
      A: Marijuana for sale.
              ....
              Q: So it would be correct that the amount of marijuana that
      was located in the defendant’s leg, it was several times more than
      what in your experience a typical user possesses? A: That’s
      correct.

      The State also examined Detective Chiprez, during which the following

exchange occurred:

            Q: Detective, based on your extensive experience in the
      area of dealing with individuals who possess marijuana and your
      review of the evidence in this case, is the marijuana in this case
                                         5


       consistent with possession for sale or transfer to another person—
       or is it consistent with possession for personal use only?
                ....
                A: It’s consistent with possession with intent to sell.

       Bailey argues that this combined testimony served to invade the province

of the jury regarding the intent element for the possession with intent to deliver

charge. Specifically, he cites two cases from the 1970’s—State v. Nimmo, 247

N.W.2d 228, 229–30 (Iowa 1976), and State v. Ogg, 243 N.W.2d 620, 621 (Iowa

1976)—for the proposition that expert witnesses cannot testify the defendant had

the intent to sell the controlled substance at issue. Consequently, he asserts,

trial counsel was ineffective for failing to make the proper objections regarding

the officers’ statements.

       It is well settled that experts may testify about their opinion on an issue

within their knowledge or expertise, though this testimony may not invade the

province of the jury regarding an ultimate issue of fact. See State v. Dinkins, 553

N.W.2d 339, 341 (Iowa Ct. App. 1996) (noting this rule does not prohibit

otherwise admissible expert testimony because it may “embrace an ultimate

issue to be decided by the trier of fact”). However:

       The State may not ask whether an expert has an opinion or
       believes the defendant is guilty of the crime, or possessed drugs for
       sale as opposed to personal use. The State may properly ask a
       qualified expert, however, whether the particular facts of the case,
       stemming from the expert’s field of expertise, would be
       characterized as drug dealing or drug consumption.

Id. (internal citations omitted). This distinction highlights the fine line between

opinions that improperly interfere with the jury’s role in determining guilt or

innocence for specific intent crimes, and those opinions that properly

characterize the defendant’s conduct based on the facts. See id.
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         Specifically in the context of drug cases, expert testimony regarding the

consistency of the facts of the case with general traits and patterns of drug

dealer’s modus operandi is often necessary “because the quality and quantity of

drugs, the manner of packaging, the manner of secretion, the presence of drug

paraphernalia, and many other circumstances may reflect whether drugs are

possessed for personal use or for distribution.” Id. Without this expert testimony,

the significance of such facts will often be unknown to the jury.              See id.

Consequently, our courts have upheld the admission of expert testimony that

offers an opinion regarding the consistency of the facts of the case with a drug

dealer’s modus operandi, as opposed to the mere possession for personal use.

See id. at 342 (upholding the admission of testimony that the amount of drugs in

the case and the lack of other drug paraphernalia “indicates a dealer”); State v.

Olsen, 315 N.W.2d 1, 6–7 (Iowa 1982) (finding admissible testimony that the

evidence found on the defendant “fit into the method of operation of a person

who was selling drugs for profit”).

         It is notable Dinkins was decided after Iowa Rule of Evidence 5.704

established that an expert’s testimony that is “otherwise admissible is not

objectionable because it embraces an ultimate issue to be decided by the trier of

fact.”1 Furthermore, our case law recognizes the need for the jury to hear the


1
    The official comment reads:
         This section is consistent with Iowa law. See, e.g., Grismore v.
         Consolidated Products Co., 5 N.W.2d 646, 232 Iowa 328 (1942). Note,
         however, that while this section and prior Iowa case law abolish the so-
         called ultimate issue rule, testimony from experts is not without
         limitations. Experts are not to state opinions as to legal standards. On
         this basis, questions such as whether X was negligent or whether a
         product was unreasonably dangerous may be excluded. Aller v. Rodgers
         Machinery Mfg. Co., Inc., 268 N.W.2d 930 (Iowa 1978).
                                         7


expert testimony of officers who are familiar with the modus operandi of drug

dealers, and who can testify about the quantity of drugs that is consistent with the

amount a drug dealer possesses. See Dinkins, 553 N.W.2d at 341; see also

State v. Grant, 722 N.W.2d 645, 648 (Iowa 2006) (citing Dinkins, 553 N.W.2d at

342, and noting with approval the police officer’s testimony “that one purchasing

methamphetamine for personal use in the quantity that was involved here would

ordinarily receive the substance in bulk packaging form”); State v. Shumpert, 554

N.W.2d 250, 254 (Iowa 1996) (holding counsel was not ineffective for failing to

object to police officer’s statement that the manner in which the crack cocaine

was found indicated a dealer, given the testimony was properly admitted). The

fact that these cases were decided more recently, and after it was established

the jury should hear the opinion testimony of officers familiar with the modus

operandi of drug dealers, distinguishes them from Nimmo and Ogg, the cases on

which Bailey relies.

       Here, the officers’ testimony was confined to their opinion that the amount

of drugs Bailey possessed was consistent with the quantity of marijuana

possessed by someone with the intent to sell. Thus, our more recent case law

counsels that these opinions did not cross that “fine but essential line.” Dinkins,

553 N.W.2d at 341; see also Grant, 722 N.W.2d at 648. Consequently, Bailey

was not prejudiced by trial counsel’s failure to object to the testimony on the

grounds of improper opinion testimony. See State v. Greene, 592 N.W.2d 24, 29

(Iowa 1999) (holding counsel does not breach an essential duty when declining

to pursue a meritless objection).
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       I would also deny Bailey’s ineffective-assistance claim based on trial

counsel’s failure to object to jury instruction fourteen defining knowledge. The

jury instruction stated: “For the defendant to ‘know’ or ‘have knowledge of’ means

he had a conscious awareness that the substance he possessed was marijuana”

(emphasis added). “When a single jury instruction is challenged, it will not be

judged in isolation but rather in context with other instructions relating to the

criminal charge.” State v. Stallings, 541 N.W.2d 855, 857 (Iowa 1995). The

other jury instructions in this case properly stated the law and the State’s burden

on each charge. Jury instruction eighteen informed the jury that, to find Bailey

guilty of possession of cocaine, it must find he “knowingly or intentionally

possessed cocaine HCL.” Jury instruction nineteen was similarly phrased—to

find Bailey guilty of possession of hydrocodone, he must have “knowingly or

intentionally possessed hydrocodone.”

       Viewed as a whole, I would conclude the instructions did not lower the

State’s burden on the possession charges.           It is clear instruction fourteen

contained a typographical error, and, combined with the other proper instructions,

did not serve to prejudice the jury. See Anderson v. Webster City Cmty. Sch.

Dist., 620 N.W.2d 263, 267–68 (Iowa 2000) (noting prejudice only results “when

the trial court’s instruction materially misstates the law, confuses or misleads the

jury, or is unduly emphasized” and holding that, even though one instruction

improperly commented on the evidence, when considered as a whole the

instructions did not mislead the jury).       Consequently, trial counsel was not

ineffective for failing to object to this instruction. See Greene, 592 N.W.2d at 29

(noting counsel is not ineffective for declining to pursue a meritless objection).
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      For these reasons, I would affirm Bailey’s convictions and deny his

ineffective-assistance claims on the merits.
