                   IN THE COURT OF APPEALS OF IOWA

                                     No. 13-0602
                                 Filed May 29, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARK EUBANKS,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.



      Defendant appeals his convictions for possession of a controlled

substance and interference with official acts causing injury. AFFIRMED.



      Magdalena B. Reese and Robb Goedicke of Cooper, Goedicke, Reimer &

Reese, West Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney

General, John Sarcone, County Attorney, and Andrea Petrovich, Assistant

County Attorney, for appellee.



      Heard by Danilson, C.J., and Potterfield and McDonald, JJ.
                                          2



MCDONALD, J.

       Mark Eubanks was convicted of two counts of possession of a controlled

substance, crack cocaine and marijuana, and interference with official acts

causing injury, in violation of Iowa Code sections 124.401(5) and 719.1(1)

(2011), respectively. On appeal, Eubanks argues there is insufficient evidence

supporting the possession convictions. He also argues the district court erred in

admitting evidence that Eubanks assaulted a police officer. Finally, he raises

several claims of ineffective assistance of counsel.

                                          I.

       On November 19, 2012, a Des Moines police officer responded to a

dispatch regarding a stranded vehicle on the road. The officer arrived at the

scene and made contact with the driver of the vehicle, Tanesha Anderson.

Anderson stated the vehicle was out of gas and she had called her boyfriend for

assistance. She also stated she expected assistance to arrive in five to ten

minutes, but she was unsure who. The officer performed a routine check on

Anderson’s name and the vehicle’s license plate and discovered two things:

Anderson’s operating privileges were suspended; and the owner of the vehicle,

Anderson’s boyfriend Anthony Williams, had an outstanding warrant for his

arrest. The officer informed Anderson she would be given a citation for driving

with a suspended license but would not be arrested. The officer had Anderson

sit in the patrol car while they waited for Anderson’s help to arrive.

       Several minutes later, a car pulled alongside the stalled vehicle. A then

unidentified individual—subsequently identified as Eubanks—exited the vehicle
                                          3



with gas can in hand. The officer believed Eubanks matched the same general

description as Williams. The officer approached Eubanks and engaged him in

conversation, asking him to identify himself.       Eubanks identified himself as

“Jackson Black,” but a records check returned no results for that name. The

officer asked Eubanks why there were no results for that name, and he told the

officer to check records in Illinois. Again, the officer found no results. The officer

separately asked Eubanks and Anderson how they knew each other, and they

provided the officer with inconsistent stories, raising further suspicion. When the

officer again asked Eubanks to identify himself, he again provided the officer with

false information. The interaction between the officer and Eubanks was captured

on the officer’s dashboard video camera.

       The officer called for non-emergency assistance.          The video footage

shows Eubanks immediately becoming agitated. The officer told Eubanks she

needed to put him in handcuffs while she completed her investigation. Eubanks

started arguing with her and then started to move away from the scene. When

the officer grabbed one of Eubanks’ wrists to stop him from leaving, he turned

and punched her in the face causing her to tumble backwards. Eubanks than ran

towards the second vehicle, which was now parked in front of the stalled vehicle.

The officer was able to grasp Eubanks while he was attempting to enter the

vehicle and yelled for him to “get on the ground.” Eubanks turned on the officer,

threw her to the ground, and repeatedly punched her. Eubanks fled on foot, and

the second vehicle left the scene. The officer pursued at a distance and radioed

for assistance.
                                          4



       Shortly thereafter, other officers arrived and established a perimeter

around the neighborhood where Eubanks was last observed.                   With the

assistance of a canine unit, the officers were able to locate and arrest Eubanks.

The responding officer positively identified Eubanks as the person arriving at the

scene and assaulting her. After Eubanks’ arrest, the responding officer returned

to the location of the stalled vehicle and began to look for her flashlight, which

had come off her belt during the second altercation with Eubanks.            Another

officer assisted in the effort. While looking for the flashlight, the officers found a

bag containing crack cocaine and marijuana on the ground in the area where the

second altercation took place.

       Eubanks was charged by trial information with the following: possession of

a controlled substance, cocaine, with intent to deliver; possession of a controlled

substance, marijuana; interference with official acts causing injury; and assault

on a police officer causing injury.     Eubanks pleaded guilty to the charge of

assault on a police officer causing injury.      He elected to go to trial on the

remaining charges. The jury found Eubanks guilty of the lesser included offense

of possession of a controlled substance, cocaine; possession of a controlled

substance, marijuana; and interference with official acts causing injury.        This

appeal followed.

                                         II.

       Eubanks challenges the sufficiency of the evidence supporting his

convictions for possession of crack cocaine and marijuana.            “Sufficiency of

evidence claims are reviewed for a correction of errors at law.” State v. Sanford,
                                        5



814 N.W.2d 611, 615 (Iowa 2012). “In reviewing challenges to the sufficiency of

evidence supporting a guilty verdict, courts consider all of the record evidence

viewed in the light most favorable to the State, including all reasonable

inferences that may be fairly drawn from the evidence.”         Id. (citation and

quotation marks omitted). “We will uphold a verdict if substantial record evidence

supports it.”   Id. (alteration omitted) (citation and quotation marks omitted).

“Evidence is considered substantial if, when viewed in the light most favorable to

the State, it can convince a rational jury that the defendant is guilty beyond a

reasonable doubt.” Id.

       “Unlawful possession of a controlled substance requires proof that the

defendant: (1) exercised dominion and control over the contraband, (2) had

knowledge of its presence, and (3) had knowledge that the material was a

controlled substance.” State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003). “In the

realm of controlled substance prosecutions, possession can be either actual or

constructive.” State v. Cashen, 666 N.W.2d 566, 569 (Iowa 2003). In this case,

the controlled substances were not on Eubanks’ person at the time of arrest.

Eubanks contends the State was thus required to prove constructive possession.

He further argues that “mere proximity to contraband is insufficient to support a

finding of constructive possession.” Id. at 572. The State disagrees this case

involves a question of constructive possession. Instead, the State contends, this

is a case in which there was sufficient circumstantial proof of actual possession.

We agree.
                                        6



      As previously stated, “possession,” within the meaning of Iowa Code

chapter 124, can be actual or constructive. “A defendant has actual possession

of the drugs if he or she has direct physical control over the drugs. Possession is

constructive where the defendant has knowledge of the presence of the drugs

and has the authority or right to maintain control of them.” Id. at 569 (alteration

omitted) (citation and quotation marks omitted). The defendant correctly notes

that cases subsequent to Cashen appeared to draw a sharper distinction

between actual possession and constructive possession than Cashen drew.

These subsequent cases applied an actual possession analysis where the

“substance is found on the person” and a constructive possession analysis to

everything else. See State v. Maxwell, 743 N.W.2d 185, 193 (Iowa 2008); see,

e.g., State v. Carter, 696 N.W.2d 31, 39 (Iowa 2005) (“Contrary to the State’s

contention, we find that Carter did not have actual possession of the controlled

substance because it was not found on his person.”); State v. Kemp, 688 N.W.2d

785, 789 (Iowa 2004) (“Actual possession occurs when the controlled substance

is found on the defendant’s person.” (citation and quotation marks omitted));

Bash, 670 N.W.2d at 138 (same). The sharp distinction drawn in these cases

between actual possession and constructive possession proved to be short-lived.

      The controlling case is State v. Vance, 790 N.W.2d 775 (Iowa 2010). In

Vance the police initiated a traffic stop of the defendant. 790 N.W.2d at 778. In

the defendant’s car, officers found a syringe, a tank filled with anhydrous

ammonia, stripped lithium batteries, methamphetamine residue, and other items

consistent with manufacturing methamphetamine.         Id. at 779.   Among these
                                       7



items was a receipt showing a pharmacy purchase for cold medicine containing

pseudoephedrine.    Id.   The police did not find pseudoephedrine on Vance’s

person or in his vehicle at the time of the stop. Id. at 784. Indeed, the police

never found any pseudoephedrine.        Id.   Nonetheless, the defendant was

convicted of possession of precursor products—pseudoephedrine—with intent to

manufacture methamphetamine.       Id. at 779.   On appeal, the supreme court

concluded there was substantial evidence supporting the jury’s finding that the

defendant had actual possession of pseudoephedrine even though no

pseudoephedrine was ever found. Id. at 784.

      The court’s reasoning in Vance exposed flaws in the prior cases upon

which Eubanks relies. First, there is no hard and fast distinction between actual

possession and constructive possession; where the former ends and the latter

begins depends on the facts and circumstances of each case and does not

necessarily turn on the question of whether the contraband was found on the

defendant’s person. See id. (stating that “actual possession” is not limited to

those circumstances in which the contraband is in the physical possession of the

defendant at the time of the stop or the time of arrest). Second, the distinction

drawn in the prior cases imposed an artificial temporal element in the offense.

The statute criminalizes “possession.” Nowhere does it require the defendant be

caught red-handed and in physical possession at the time of the stop or arrest.

Vance removed this artificial temporal element and recognized the State can

prove past possession, whether actual or constructive. See id. (“Although the

pseudoephedrine was not found on Vance’s person at the time of the stop,
                                           8



substantial evidence supports the jury’s finding that at one time Vance had actual

possession    of   the   pseudoephedrine       with   the   intent   to    manufacture

methamphetamine.” (emphasis added)); see also People v. McDaniel, 316 P.2d

660, 664 (Cal. Ct. App. 1957) (stating possession does not require proof of

possession at the very time of arrest); Womack v. State, 738 N.E.2d 320, 324

(Ind. Ct. App. 2000) (“The state was not required to show that Womack

possessed the bag of marijuana at the time of Womack’s apprehension, or at the

time the officers discovered the bag.”).

       With these principles in mind, we turn our attention to the facts of this

case. Eubanks provided the officer with false information on two occasions and

inconsistent information regarding his relationship with Anderson.                   He

immediately became agitated and argumentative when the officer called for

backup. Eubanks assaulted the officer and attempted to flee the scene after

being informed he would be detained during investigation.                 All of this is

circumstantial evidence of Eubanks’ knowledge he was engaged in unlawful

conduct—the possession of controlled substances. Even though it had rained on

the night in question and the ground was wet, the drugs were on the ground in a

dry, brown paper bag. Neither the bag nor the drugs were crumpled or crushed,

as one would expect if they had been sitting on the roadway for any significant

period of time. The drugs were found on the ground in the same location where

Eubanks assaulted the responding officer, which is the same location where the

officer’s flashlight became detached from her belt. These events occurred early

in the morning with little traffic.   The scene was secured minutes after the
                                        9



assault. The video footage from the dashboard camera does not show any other

person entering the area from the time of the stop until the time the police

secured the area.     These are all facts from which it can be inferred the

contraband was in the actual physical possession of the defendant immediately

prior to his arrest rather than coming from some other source.

      Although the contraband was not in defendant’s physical possession at

the time of arrest, viewing the facts in the light most favorable to the State, we

conclude there is substantial evidence the cocaine and marijuana were in

Eubanks’ actual possession immediately prior to arrest. See Vance, 790 N.W.2d

at 784 (“Actual possession may be shown by direct or circumstantial evidence.”);

see, e.g., State v. Carey, No. 12-1875, 2014 WL 1746574, at *2-3 (Iowa Ct. App.

Apr. 30, 2014) (concluding weight of the evidence supported conviction for

possession of a controlled substance where substance was found on ground

where defendant and officer had an altercation); Green v. State, 683 S.E.2d 914,

915 (Ga. Ct. App. 2009) (holding evidence sufficient to show defendant had been

in actual possession of cocaine where defendant was a passenger in a van that

drove away at a high rate of speed when a police officer approached, defendant

exited the van in a grassy area near a small green utility box, the officer

recovered three plastic bags containing crack cocaine in the grass near the small

green utility box, and officers noted that the plastic bags were dry even though it

had rained earlier that evening and the ground was pretty saturated).
                                         10



                                         III.

       Eubanks argues the district court erred in allowing testimony regarding

Eubanks’ assault on the officer because Eubanks already had pleaded guilty to

the assault charge and because evidence of the assault was unduly prejudicial.

Error was not preserved on the issue. At trial, Eubanks’ counsel did not object to

the video record of the assault. Eubanks also did not object to the responding

officer’s extensive testimony regarding the assault. While Eubanks’ counsel did

object to the admission of four photographs depicting the officer’s injuries caused

by Eubanks’ assault, that objection is insufficient to preserve error with respect to

the videotape and testimony. See DeVoss v. State, 648 N.W.2d 56, 62 (Iowa

2002) (discussing error preservation); Johnson v. State Farm Auto Ins. Co., 504

N.W.2d 135, 139 (Iowa Ct. App. 1993).

                                         IV.

       Eubanks raises several claims of ineffective assistance of counsel.

Ineffective-assistance-of-counsel     claims    are     typically   addressed      in

postconviction-relief proceedings where the record is more fully developed. See

Maxwell, 743 N.W.2d at 195. When such claims are presented on direct appeal,

however, the “court may decide the record is adequate to decide the claim or

may choose to preserve the claim for determination under chapter 822.” Iowa

Code § 814.7(3).     Where the record is sufficient to permit a ruling, we will

address the claim on direct appeal.      See Maxwell, 743 N.W.2d at 195. We

review claims of ineffective assistance of counsel de novo. See Castro v. State,

795 N.W.2d 789, 792 (Iowa 2011).
                                          11



       To establish a claim for ineffective assistance of counsel, Eubanks must

show “(1) his trial counsel failed to perform an essential duty, and (2) this failure

resulted in prejudice.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). Failure

to prove either element is fatal to the claim. See State v. Graves, 668 N.W.2d

860, 869 (Iowa 2003).      In determining whether counsel failed to perform an

essential duty, we first decide if the representation dropped below an objective

standard of reasonableness. See Hinton v. Alabama, 134 S. Ct. 1081, 1088

(2014).   Regarding prejudice, the ultimate inquiry is whether trial counsel’s

allegedly deficient performance caused a complete “breakdown in the adversary

process” such that the conviction is unreliable. See Strickland v. Washington,

466 U.S. 668, 687 (1984). This requires the defendant to establish “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Lamasters v. State, 821 N.W.2d 856,

866 (Iowa 2012) (quoting Strickland, 466 U.S. at 694).

                                     A.

       Eubanks claims his trial counsel was ineffective for failing to file a motion

to suppress evidence following Eubanks’ allegedly unlawful detention. Eubanks

fails to identify with any specificity the nature of the motion. For example, he

does not specifically identify when, why, or how his constitutional rights were

infringed other than asserting he was unlawfully detained. He does not identify

when the allegedly unlawful detention began.        He also fails to identify what

evidence should have been suppressed. The court is not obligated to construct

counsel’s arguments. See State v. Stoen, 596 N.W.2d 504, 507 (Iowa 1999);
                                          12



see also United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) (“A skeletal

‘argument,’ really nothing more than an assertion, does not preserve a claim. . . .

Judges are not like pigs, hunting for truffles buried in briefs.”).   Rather than

holding the claim is waived, see Iowa R. App. P. 6.903(2)(g)(3) (requiring that

appellant’s brief contain “the appellant’s contentions and the reasons for

them . . . . Failure to cite authority in support of an issue may be deemed waiver

of that issue”), we preserve the issue for postconviction-relief proceedings. See

State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010) (“[W]e hold defendants are

no longer required to raise ineffective-assistance claims on direct appeal, and

when they choose to do so, they are not required to make any particular record in

order to preserve the claim for postconviction relief.”).

                                          B.

       Eubanks argues his trial counsel provided constitutionally deficient

performance when he failed to object to the responding officer’s testimony

regarding the assault, photographs of injuries the officer sustained during the

assault, and the video evidence of the assault. Given the elements the State is

required to prove for interference with official acts causing injury, Eubanks

concedes that some of the evidence was undoubtedly admissible. He contends,

however, that the conduct constituting interference is separate and distinct from

the conduct constituting assault; once bifurcated and categorized in this manner,

he further contends, counsel should have objected to the evidence relating to the

assault charge as inadmissible under Iowa Rule of Evidence 5.404(b).           We
                                         13



conclude Eubanks’ claims fail because the objections were without merit and

counsel had no duty to make non-meritorious objections.

       First, Eubanks’ argument appears to be predicated on the assumption that

the same conduct constituting the assault to which he pleaded guilty cannot also

constitute interference with official acts causing injury.      This is erroneous.

Interference with official acts and assault are separate statutory offenses. Each

requires proof of an element the other does not.             Compare Iowa Code

§§ 708.1(1), 708.3A(3) (requiring proof of specific intent to cause pain or injury),

with Iowa Code § 719.1(1) (requiring proof of knowing resistance or obstruction).

It is well established that a defendant can be convicted and punished for violating

multiple statutes arising out of a single transaction where neither statute is an

included offense of the other. See Iowa R. Crim. P. 2.6(1) (recognizing that two

or more indictable public offenses may arise from the same transaction or

occurrence); Missouri v. Hunter, 459 U.S. 359, 367 (1983); State v. Butler, 505

N.W.2d 806, 807 (Iowa 1993) (“The applicable rule is that where the same act or

transaction constitutes a violation of two distinct statutory provisions, the test to

be applied to determine whether there are two offenses or only one, is whether

each provision requires proof of a fact which the other does not.” (quoting

Blockburger v. United States, 284 U.S. 299, 304 (1932)). Eubanks cites no law

to the contrary. Thus, the entirety of the evidence to which Eubanks contends

counsel should have objected was relevant to the interference charge and

admissible.   Had counsel lodged an objection to the evidence, the objection

would have been without merit.
                                         14



       Second, even assuming that Eubanks’ conduct could be and should be

bifurcated and categorized into separate offenses as he suggests, all evidence

relating to the assault charge fell outside the prohibition of rule 5.404(b) as

admissible intrinsic evidence inextricably intertwined with the conduct relevant to

the interference charge:

       The inextricably intertwined doctrine holds other crimes, wrongs, or
       acts evidence that is inextricably intertwined with the crime charged
       is not extrinsic evidence but, rather, intrinsic evidence that is
       inseparable from the crime charged. Therefore, although there are
       two separate offenses, the testimony about the two offenses is so
       closely intertwined and indivisible that the court must admit the
       evidence of the technically uncharged crime.             Furthermore,
       because rule 5.404(b) is inapplicable to inextricably intertwined
       evidence, the court admits the technically uncharged-crime
       evidence without limitation and irrespective of its unfair prejudice or
       its bearing on the defendant’s bad character.             Instead, the
       inextricably intertwined evidence is subject to the same general
       admissibility requirements as other evidence that is used to provide
       the fact finder with a complete picture of the charged crime.

State v. Nelson, 791 N.W.2d 414, 420 (Iowa 2010) (citations and quotation marks

omitted).

       The two physical confrontations between Eubanks and the responding

officer were part of a single continuous transaction occurring over a period of less

than twenty seconds. It was necessary to admit evidence regarding the entire

transaction to complete the narrative. To try and exclude evidence regarding

certain parts of the transaction would have rendered the narrative confusing and

incomprehensible.    Eubanks’ counsel conceded at argument that the crimes

were inextricably intertwined and could not be separated.          Thus, even had

counsel made the objection, the district court could have properly overruled the
                                             15



objection. “Thus, trial counsel did not fail to perform an essential duty.” State v.

Shanahan, 712 N.W.2d 121, 138 (Iowa 2006).

                                             C.

       At the beginning of Eubanks’ trial, his defense counsel informed the jury

that Eubanks had previously pleaded guilty to assaulting the responding officer.

It is evident from reading the opening and closing statements of Eubanks’ trial

counsel that he alerted the jury to the guilty plea to separate the “assault” facts

from the “interference” facts so the jury would convict Eubanks only of the lesser

included offense, interference with official acts (as opposed to interference with

official acts causing injury).   Eubanks argues his counsel was ineffective for

alerting the jury to Eubanks’ guilty plea.

       “[W]e do not delve into trial tactics and strategy when they do not clearly

appear to have been misguided.” State v. Ondayog, 722 N.W.2d 778, 786 (Iowa

2006) (citation and quotation marks omitted). “In other words, we will not reverse

where counsel has made a reasonable decision concerning trial tactics and

strategy, even if such judgments ultimately fail.” Id. (citation and quotation marks

omitted). Given the procedural posture of the case, we cannot say this was an

unreasonable trial strategy. More important, even if we assume that Eubanks’

trial counsel breached an essential duty owed Eubanks by referring to the assault

conviction during opening argument, Eubanks cannot establish prejudice.

       First, as previously discussed, the jury would have learned of the assault

through the officer’s testimony and from watching the video.          Second, the

responding officer’s testimony and videotape constitute overwhelming evidence
                                       16



establishing Eubanks was guilty of interference with official acts causing injury.

There is no reasonable probability the outcome of the proceeding would have

been different had counsel not alerted the jury to the assault conviction. See

State v. Thompson, 836 N.W.2d 470, 479 (Iowa 2013) (finding no prejudice

where videotaped admission established overwhelming evidence of guilt); State

v. Howard, 825 N.W.2d 32, 41–42 (Iowa 2012) (stating error is harmless when

State establishes overwhelming evidence of guilt); State v. Denney, No. 12-1156,

2013 WL 2370719, at *4 (Iowa Ct. App. May 30, 2013) (finding no prejudice

where videotape documented commission of crime and officer testified to the

same); State v. Cerda, No 12-0086, 2013 WL 263456, at *4 (Iowa Ct. App. Jan.

24, 2013) (finding no prejudice where videotape showing commission of crime

constituted overwhelming evidence of guilt).

                                       D.

      Eubanks     contends his    counsel      rendered   constitutionally deficient

performance by failing to file a motion for new trial. Rule 2.24(2)(b)(6) allows a

defendant to seek a new trial when the verdict is contrary to the law or evidence.

Contrary to the evidence means contrary to the weight of the evidence. See

State v. Reeves, 670 N.W.2d 199, 202 (Iowa 2003). “Unlike the sufficiency-of-

the-evidence analysis, the weight-of-the-evidence analysis is much broader in

that it involves questions of credibility and refers to a determination that more

credible evidence supports one side than the other.”         State v. Nitcher, 720

N.W.2d 547, 559 (Iowa 2006).       “The granting of a new trial based on the

conclusion that a verdict is against the weight of the evidence is reserved for
                                         17



those situations in which there is reason to believe that critical evidence has

been ignored in the fact-finding process.” State v. Grant, 722 N.W.2d 645, 648-

49 (Iowa 2006). The district court has broad discretion in ruling on a motion for

new trial. See id. at 648. Upon review of the record, there is no reason to

believe that critical evidence has been ignored in this case or that the verdict is

otherwise contrary to the law or evidence. In fact, the greater amount of credible

evidence supports the conviction. Counsel had no duty to file a motion without

any merit. State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009). Therefore, the

failure to move for new trial was not prejudicial and does not constitute ineffective

assistance.

                                         V.

       For the foregoing reasons, the judgment of the district court is affirmed.

       AFFIRMED.
