                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0681
                               Filed May 14, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ISAAC ANDREW BALDON,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Bobbi M. Alpers,

Judge.



      A defendant appeals following his conviction on drug-related offenses.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Isaac A. Baldon III, Coralville, pro se appellant.

      Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney

General, Michael J. Walton, County Attorney, and Kelly G. Cunningham,

Assistant County Attorney, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
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MULLINS, J.

       Isaac Baldon appeals following his convictions for possession of

marijuana with intent to distribute and failure to affix a drug tax stamp, both class

“D” felonies and both enhanced as Baldon was a habitual offender. See Iowa

Code    §§ 124.401(1)(d),      124.204(4)(m),     124.411,     453B.1(3)(b),    453B.3,

453B.7(1), 452B.12, 902.8 (2011).         On appeal he asserts his attorney was

ineffective in failing to object to the testimony of a police officer, who testified as a

drug expert on behalf of the State.          He claims the court should not have

overruled his motion to suppress the evidence and his attorney was ineffective in

failing to file a timely motion. Finally, he claims the court applied the wrong legal

standard when rejecting his motion for judgment of acquittal.             Because we

conclude the record contains no error of the district court and counsel was not

ineffective, we affirm his conviction and sentence.

I. Background Facts and Proceedings.

       Officer Delaere pulled Baldon over for speeding on July 30, 2012. When

she approached the car, Officer Delaere smelled the odor of strong air freshener

coming from the car. She obtained Baldon’s license and registration information,

and returned to her patrol car to run the information and issue Baldon a warning

for speeding. When she returned to Baldon’s car to return his paperwork, the air

freshener smell had dissipated, and she detected the odor of fresh marijuana

emanating from the car. She inquired of Baldon for an explanation for the smell.

Based on the smell, she decided to search the vehicle and detained Baldon while

she called for backup. In the center console of the car, officers found six baggies
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of marijuana of varying weights, a scale, and multiple empty baggies. From

Baldon’s person, the officers recovered two cellphones and $645 in cash in

denominations of 20s, 10s, 5s, and 1s.

       Just prior to trial, Baldon filed a pro se motion to suppress. His attorney

requested a continuance in order to prepare to argue the motion and due to the

fact a police witness was unavailable.         In addition, it had been recently

discovered the video of the traffic stop was no longer available. The court denied

the motion to continue, and the case proceeded to a jury trial on March 4, 2013.

In addition to calling Officer Delaere to testify as to the facts of the case, the

State called Sergeant Proehl as an expert in narcotics crimes. He described his

experience investigating drug trafficking, drug packaging, and dealing activities.

       After the close of evidence, Baldon’s attorney asserted the motion to

suppress, which the court denied on the merits stating, “[T]he Court finds that the

summary of case law as offered by [the prosecutor] is persuasive and that this

motion to suppress must be denied for the reasons as argued by the State at this

time.” Defense counsel also moved “for a directed verdict of acquittal” asserting

there was no indication Baldon knew the marijuana was in the car or that he was

in possession of it. The district court denied the motion.

       The jury found Baldon guilty as charged, and Baldon stipulated to his prior

criminal history. He was subsequently sentenced to two terms of imprisonment

of fifteen years each to be served concurrently, including various fines, costs,

and surcharges. He appeals.
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II. Scope and Standards of Review.

       We review claims of ineffective assistance of counsel de novo. State v.

Merrett, 842 N.W.2d 266, 273 (Iowa 2014).         To show ineffective assistance,

Baldon must prove counsel failed to perform an essential duty and he suffered

prejudice as a result. See State v. Null, 836 N.W.2d 41, 48 (Iowa 2013). Both

elements must be proven by a preponderance of the evidence. Id.

       Our review of a district court’s ruling on a motion to suppress is likewise

de novo as it implicates constitutional rights. State v. Tyler, 830 N.W.2d 288, 291

(Iowa 2013). We give deference to the factual findings of the district court due to

its ability to evaluate the credibility of witnesses, but we are not bound by the

findings. Id.

       Finally, we review sufficiency-of-the-evidence challenges for correction of

errors at law, and we will uphold the verdict if substantial evidence in the record

supports it when viewed in the light most favorable to the State. State v. Nitcher,

720 N.W.2d 547, 556 (Iowa 2006).

III. Expert Testimony.

       On appeal, Baldon asserts the following sections of Sergeant Proehl’s

direct examination testimony were improper and defense counsel should have

objected to them:

              Q. . . . What is significant about that digital scale? A. It
       was found with the packaging, the marijuana, and also there is—
       appears to have marijuana residue all over the scale.
              Q. Which would tell you what? A. It’s being used to
       package marijuana.
              Q. Is that a tool that you associate with distribution or use?
       A. It can be used for both, but in this case with these facts it would
       be the distribution.
                                         5



He further testified:

               Q. Now, when you look at all of the variables in this
       particular case, in your expert opinion, what do those variables
       indicate? What are they indicative of? Take us through each of
       these variables and analyze them. A. Like I mentioned before,
       with the different weights of marijuana it would be a different
       customer base asking for different amounts for sale. The scale
       would indicate that there’s packaging going on inside the vehicle.
       The baggies are right there as well. The actual larger amount, the
       quarter pound, not sure if that’s for sale or if that would be used for
       a supply to make the smaller quantities. There was probably
       definitely more marijuana out there somewhere.
               Q. And the money, of course, then, would be a reflection of
       what had already occurred? A. Proceeds from the sale of
       narcotics.
               Q. Okay. Since you have product, you have the various
       quantities that are prepackaged, you have got the cell phones, you
       have got the plastic baggies, and then you have got an increment
       of money, where in that cycle would you put this particular dealer?
       A. Still has supply, so he’s still in business.
               Q. In your expert opinion, what is this evidence indicative
       of? A. Marijuana trafficking.

Baldon claims Sergeant Proehl went too far in his testimony by stating that he

was dealing drugs, was in the middle of a dealing “cycle” when he was arrested,

and was involved in trafficking marijuana.       He also challenges the expert’s

statement that “[t]here was probably definitely more marijuana out there

somewhere.” Baldon asserts this was inadmissible testimony as it passed on his

guilt rather than just aiding the jury in understanding a fact in issue. He asserts

the testimony went to the heart of the case and left nothing for the jury to decide.

       Expert opinion is admissible to assist the trier of fact to understand the

evidence or determine a fact in issue. State v. Dinkins, 553 N.W.2d 339, 341

(Iowa Ct. App. 1996). The expert testimony can even embrace an ultimate issue

so long as the expert does not express a direct opinion on the guilty or innocence
                                          6

of the defendant—that is the exclusive function of the jury. Id. There is often a

fine line between inadmissible and admissible testimony of expert witnesses

especially in cases where the fighting issue is whether the accused possessed

drugs with the intent to sell. Id. It is not proper for an expert to give an opinion

that the defendant had the intent to deliver the drugs based on the facts, but the

expert may express an opinion that the facts of the case fit a profile of a person

who sells drugs. Id. at 341–42. So long as the opinion does not directly relate to

the defendant but is instead an opinion that the evidence in the case is consistent

with selling drugs, the testimony is properly admitted. Id. at 342; but see State v.

Vesey, 482 N.W.2d 165, 168 (Iowa Ct. App. 1991) (concluding the testimony

from the expert that “there was heroin being dealt from this residence” was

improper because it was “an opinion as to the ultimate fact of an element of the

crime with which the defendant was charged”).

       Sergeant Proehl testified regarding his expertise that the digital scale was

being used to package marijuana because it was found with packaging material

and marijuana, and the scale also had marijuana residue on it. This was not

improper testimony as Sergeant Proehl did not say, nor was he asked, whether

Baldon was using the scale to package marijuana for sale. He was simply asked

the significance of the scale based on his expertise. Likewise, Sergeant Proehl’s

testimony in response to the question of what the variables in this case tell him

was proper. He analyzed the facts present: the scale, the baggies, the varying

weights of packaged marijuana, and the money, and he concluded it was

indicative of “marijuana trafficking” based on his expertise.
                                         7


       In addition, even if the attorney should have objected to Proehl’s

statements that “[t]here was probably definitely more marijuana out there

somewhere” and that this particular dealer “[s]till has supply, so he’s still in

business,” we conclude Baldon cannot sustain his ineffective-assistance claim

because of the overwhelming evidence of his guilt.            He cannot prove a

reasonable likelihood of a different outcome had counsel objected to the

testimony and the testimony had been excluded. See Vesey, 482 N.W.2d at 168

(finding that the defendant had not demonstrated a reasonable probability he

would have been acquitted had the evidence been excluded as improper opinion

testimony).

       Baldon does not challenge Officer Delaere’s testimony, which mirrors a lot

of Sergeant Proehl’s testimony. When Officer Delaere informed Baldon that she

smelled marijuana and advised him she was going to search, he became very

fidgety, nervous, and reached several times toward the direction of the center

console. A large amount of marijuana was found in the center console of a

vehicle recently registered to Baldon. Officer Delaere observed “shake”—little

particles or flakes of marijuana that fall off when it is handled—on the floor of the

driver’s side of the vehicle. The marijuana was packaged in various weights that

corresponded to standard weights for sale. The drugs were found with a scale

and packaging material.      Officer Delaere testified the baggies found were

consistent with packing material for marijuana.       Baldon was found with two

cellphones and a large amount of cash in small denominations, which, to Officer
                                           8


Delaere, indicated the individual would be selling marijuana. Because Baldon

cannot prove prejudice, his ineffective-assistance claim fails.

IV. Motion to Suppress.

       Next, Baldon claims the district court should have granted his motion to

suppress the evidence and his attorney was ineffective in not timely filing the

motion.1 Baldon asserts Officer Delaere did not have probable cause to search

his car, and therefore, the court should have granted his motion to suppress. In

support of his claim, he points to the alleged “inconsistencies” in Officer

Delaere’s testimony, specifically that she was not sure whether Baldon left his

window down when she returned to her vehicle to run his information through the

computer system, why the smell of marijuana would not have dissipated with the

smell of the air freshener if the window was left down, and why she asked if

Baldon had been smoking marijuana in the car when she claimed she smelled

raw marijuana.

       Police officers may search a vehicle without a warrant when probable

cause and exigent circumstances exist. State v. Eubanks, 355 N.W.2d 57, 59

(Iowa 1984). When an officer smells marijuana emanating from a vehicle, it

gives the officer probable cause to search that vehicle. Id. (noting the officer

detected the odor of marijuana coming from the car and that gave the officer

probable cause to search). Exigent circumstances also existed in this case as


1
  As the district court did not deny the motion based on untimeliness, we do not need to
address Baldon’s ineffective-assistance claim. If we find the court correctly denied the
motion based on the motion’s merits, then counsel cannot be found ineffective in failing
to raise the meritless motion earlier in the proceedings. See State v. Willis, 696 N.W.2d
20, 24 (Iowa 2005) (finding counsel was not ineffective for failing to raise meritless
issues).
                                         9


the car was “movable,” the driver was alerted to the suspicion of the officer, and

the car’s contents may never be found again if a warrant had to be obtained. Id.

       Upon our de novo review of the record in this case, we find the court

properly denied the motion to suppress as the officer had probable cause to

search the vehicle and exigent circumstances existed to justify the warrantless

search. We find no inconsistencies in the officer’s testimony at trial, and we give

deference to the district court’s assessments of credibility. Because the motion

was properly denied on its merits, counsel was not ineffective in failing to raise

the issue within the time permitted in the rules of criminal procedure to file such a

motion.

V. Motion for Judgment of Acquittal.

       Finally, Baldon asserts the court applied the wrong standard in ruling on

his motion for judgment of acquittal. In denying this motion the court stated:

       A directed verdict can only be granted when there’s either no
       dispute of material issues or the reasonable inference from the
       evidence leaves no dispute. If there’s discrepancies in the
       evidence or any uncertainty in the inferences which could be drawn
       from the evidence, then a directed verdict should be denied. And if
       reasonable minds could differ on the results, the case should be
       submitted to the jury. Again the Court has had the advantage of
       hearing the evidence that has been presented in the courtroom
       today with regard to this criminal case and the Court finds that in
       this matter the Defendant has failed to meet the standard of proof
       that he needs in order to have his motion for directed verdict of
       acquittal be granted.
              The Court in making that conclusion has considered the
       evidence in a light most favorable to the State to determine whether
       or not it is—I’m sorry, most favorable—yeah, most favorable to the
       State to determine whether or not it is sufficient, and all evidence,
       including any contradictory evidence that has been presented to the
       Court in this matter has been considered. And the request for a
       directed verdict of acquittal is therefore denied and the matter will
       proceed forward for further components of the trial.
                                          10



Baldon asserts the court used the summary-judgment standard rather than the

motion-for-judgment-of-acquittal standard. Because of this error, he asks that we

remand the case to the district court for it to apply the correct standard. The

State asserts Baldon has waived any error on this claim as he failed to urge any

specific standard in the district court when he made the motion and failed to

challenge the standard announced by the court when it made its ruling. The

State also claims the court did in fact apply the correct standard when you view

the totality of the court’s ruling, as detailed above.

       We agree with the State that Baldon has not preserved error on this

challenge to the court’s recitation of the applicable standard for motions for

judgment of acquittal.     See State v. Thompson, 836 N.W.2d 470, 491 (Iowa

2013). Baldon’s attorney described the motion to the court as a “directed verdict

of acquittal” rather than a judgment of acquittal. Counsel never articulated a

particular standard to be applied and failed to object or challenge the court’s

recitation of the standard at any time prior to this appeal. In addition, we have

already found overwhelming evidence in support of Baldon’s guilt, so any error

the court may have made in applying the summary-judgment standard to the

motion for judgment of acquittal is harmless. See id.

       AFFIRMED.
