                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0472
                             Filed February 8, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NICHOLAS ROBERT CAMPBELL-SCOTT,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.




       Nicholas Campbell-Scott appeals his convictions for possession of a

firearm as a felon, among others, arguing the evidence was insufficient to

support the convictions and his trial counsel was ineffective. AFFIRMED.




       Mark C. Smith, State Appellate Defender, and Brenda J. Gohr, Assistant

Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant

Attorney General, for appellee.




       Considered by Danilson, C.J., and Doyle and McDonald, JJ.
                                         2


DOYLE, Judge.

       Following a jury trial, Nicholas Campbell-Scott was convicted of

possession of a firearm by a felon, interference with official acts while armed with

a firearm, carrying weapons, and eluding.       On appeal, he argues there was

insufficient evidence to prove he possessed a weapon, an element of three of the

crimes for which he was convicted.        He also asserts his trial counsel was

ineffective in several respects. Upon our review, we affirm.

       I. Background Facts and Proceedings.

       In September 2015, a Waterloo police officer was driving his squad car

when he observed Campbell-Scott standing next to a car.          The officer knew

Campbell-Scott had had a warrant out for his arrest, and ultimately, after

Campbell-Scott drove off in the car, the car was followed by two squad cars. The

squad cars activated their lights and sirens, but the car did not stop. A pursuit

ensued, ending when the car crashed into a light pole. However, Campbell-Scott

jumped out of the driver’s front door and continued on foot, running between the

two squad cars. Officers chased Campbell-Scott about twenty feet, caught him,

and handcuffed him. A passenger trying to exit the car was removed from the

car by another officer and handcuffed.

       Thereafter, officers discovered a revolver in a grassy area by a light pole,

in front of Campbell-Scott’s car. Another gun was found in the street on the

passenger side of Campbell-Scott’s car. Both guns were closer in proximity to

the passenger side of the car, and only partial fingerprints that were not suitable

for comparison were found on the guns. None of the officers saw Campbell-

Scott or his passenger throwing any weapons to the ground. However, one of
                                          3


the officers heard the sound of a metal clink when Campbell-Scott was “bailing

out of the car,” while the officer was “trying to grab hold of [Campbell-Scott].”

The officer did not understand what the sound was until later when the revolver

was found near the light pole. One of the squad-car videos showed an object

being thrown and landing where the revolver was found, but it did not appear that

the object was thrown by Campbell-Scott.

       The State charged Campbell-Scott with possession of a firearm as a felon,

in violation of Iowa Code section 724.26 (2015); interference with official acts

while possessing a firearm, in violation of section 719.1(1)(f); eluding, in violation

of section 321.279(3); and carrying weapons, in violation of section 724.4(1).

Following a jury trial, Campbell-Scott was found guilty as charged. Campbell-

Scott now appeals, challenging the sufficiency of the evidence to show he

“possessed” a firearm and asserting his trial counsel was ineffective in several

respects.

       II. Sufficiency of the Evidence.

       A jury’s guilty verdict will be upheld unless it lacks substantial evidence to

support it, and we review such claims for the correction of errors at law. See

State v. Reed, 875 N.W.2d 693, 704 (Iowa 2016); State v. Hickman, 576 N.W.2d

364, 366 (Iowa 1998). “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.” Reed, 875 N.W.2d at 704-05 (citation

omitted). In making this determination, we do not review just the inculpatory

evidence; rather, all of the record evidence must be considered, “including any

reasonable inferences that may be fairly drawn from the evidence.” Id. at 705
                                          4


(citation omitted). But, we recognize that the jury was free to reject or credit

certain evidence. See id.

       Relevant here, the jury found Campbell-Scott guilty of three crimes, each

requiring proof that Campbell-Scott “possessed” a firearm as an element of the

statutory crime. See Iowa Code §§ 719.1(1)(f) (“If a person commits interference

with official acts . . . and in so doing . . . is armed with a firearm, that person

commits a class “D” felony.”), 724.4(1) (“[A] person who . . . goes armed with a

pistol or revolver, or any loaded firearm of any kind, whether concealed or not, or

who knowingly carries or transports in a vehicle a pistol or revolver, commits an

aggravated    misdemeanor.”),      724.26(1)    (“A   person . . . convicted   of   a

felony . . . and who knowingly has under the person’s dominion and control or

possession . . . a firearm . . . is guilty of a class “D” felony.”); see also State v.

Thompson, No. 12-2314, 2013 WL 6686624, at *3-4 (Iowa Ct. App. Dec. 18,

2013) (discussing section 724.4(1) and its possession element); State v. Neuzil,

No. 00-1956, 2001 WL 1659114, at *2 (Iowa Ct. App. Dec. 28, 2001) (same).

Campbell-Scott argues the record evidence was insufficient to prove he had

possession of a firearm.

       In establishing whether a defendant had “possession” within the meaning

of these statutes, proof of actual possession is not required.         See State v.

Maxwell, 743 N.W.2d 185, 193 (Iowa 2008); State v. Cashen, 666 N.W.2d 566,

569 (Iowa 2003); see also Reed, 875 N.W.2d at 705 (explaining that the same

constructive-possession principles found in drug-possession cases apply to

possession-of-firearms cases).      Rather, proof of constructive possession is

sufficient to establish possession. See Reed, 875 N.W.2d at 708.
                                          5


        Constructive possession of a firearm “exists when the evidence shows the

defendant ha[d] knowledge of the presence of the [weapon] and ha[d] the

authority or right to maintain control of it.’” Id. at 705 (citation omitted). Whether

this occurred “turns on the peculiar facts of each case” and “may be proved by

inferences,” such as when the firearm is found in the defendant’s exclusive

possession.    Id. at 705.   But if the firearm is not found in the defendant’s

exclusive possession, the defendant’s knowledge of the weapon and control over

it must be established by proof, such as showing the defendant had actual

knowledge of the firearm or from “incriminating statements or [other]

circumstances from which a jury might lawfully infer knowledge . . . .” Id. at 708.

        Here, Campbell-Scott did not have actual possession of either firearm, nor

could either firearm be said to be in his exclusive possession, given the presence

of the passenger in his car. Nevertheless, viewing the record evidence in the

light most favorable to the State, the evidence provides circumstances from

which the jury could lawfully infer Campbell-Scott had knowledge of and

dominion over a firearm—namely, his elusion of the police and the presence of

two guns found at the scene of the crash after he and his passenger attempted to

flee.   This evidence is more than Campbell-Scott’s mere proximity to the

contraband found.     Campbell-Scott was the driver of the vehicle that eluded

police. Though there may be numerous reasons Campbell-Scott fled from police,

such as his intoxication or the outstanding arrest warrant, the jury could

reasonably infer that he did not stop because he knew there were firearms in the

vehicle. See, e.g., State v. Wilson, 878 N.W.2d 203, 214 (Iowa 2016) (“[T]he

inferential chain connecting an act of flight to guilt for the crime charged can
                                           6


reasonably be drawn . . . when the timing of the act suggests ‘the sudden onset

or the sudden increase of fear in the defendant’s mind that he or she will face

apprehension for, accusation of, or conviction of the crime charged.’” (citation

omitted)). Moreover, as the officers testified at trial, two guns being found at the

scene where two fleeing suspects were apprehended supports an inference that

each person had possession and control of one of the guns prior to each gun’s

disposal.    Although the contraband was not in Campbell-Scott’s physical

possession at the time of his arrest, viewing the facts in the light most favorable

to the State, we conclude there is substantial evidence one of the firearms was in

Campbell-Scott’s constructive possession. We therefore affirm on this issue.

       III. Ineffective Assistance of Counsel.

       Campbell-Scott also argues his trial counsel was ineffective in three

respects. He argues his rights under Iowa Code section 804.20 and Miranda1

were violated, and he asserts his counsel was ineffective for not moving to

suppress his statements and the results of his alcohol test based upon each of

the claimed violations. He also argues his trial counsel was ineffective for not

objecting to a jury instruction’s omission of the following sentence, which is found

in the model jury instruction: “A person’s mere 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.” Campbell-Scott also claims cumulative error.




1
  In Miranda v. Arizona, 384 U.S. 436, 479 (1966), the United States Supreme Court
held that a suspect subjected to custodial interrogation must be warned of “the right to
remain silent,” anything said “can be used against [the suspect] in a court of law,” “the
right to the presence of an attorney,” and if the suspect “cannot afford an attorney one
will be appointed . . . prior to any questioning if so desired.”
                                          7


       “To prevail on a claim of ineffective assistance of counsel, the claimant

must show counsel failed to perform an essential duty and prejudice resulted.”

State v. Ary, 877 N.W.2d 686, 704 (Iowa 2016). Our review is de novo, and the

claim fails if either element is lacking. See State v. Schlitter, 881 N.W.2d 380,

388 (Iowa 2016).

       Nevertheless, we generally preserve ineffective-assistance-of-counsel

claims for postconviction-relief proceedings, where a proper record can be

developed.    See State v. Null, 836 N.W.2d 41, 48 (Iowa 2013).                “That is

particularly true where the challenged actions of counsel implicate trial tactics or

strategy which might be explained in a record fully developed to address those

issues.” State v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). “[A]t a postconviction

relief hearing, trial counsel will have an opportunity to explain [his or] her conduct

and performance.” State v. Blair, 798 N.W.2d 322, 329 (Iowa Ct. App. 2011). A

lawyer, like any accused, is entitled to his or her day in court, especially when his

or her professional reputation is impugned. See State v. Bentley, 757 N.W.2d

257, 264 (Iowa 2008). Consequently, we will only address claims of ineffective

assistance of counsel on direct appeal when the record is sufficient to decide the

issue. See State v. Ross, 845 N.W.2d 692, 697 (Iowa 2014). We find the record

adequate here.

       A. Section 804.20 Violation.

       Iowa Code section 804.20 provides for “a limited statutory right to counsel

before making the important decision to take or refuse the chemical test under

implied consent procedures.” State v. Hellstern, 856 N.W.2d 355, 361 (Iowa

2014) (citation omitted). The statute specifically states, in relevant part:
                                         8


              Any peace officer or other person having custody of any
      person arrested or restrained of the person’s liberty for any reason
      whatever, shall permit that person, without unnecessary delay after
      arrival at the place of detention, to call, consult, and see a member
      of the person’s family or an attorney of the person’s choice, or both.
      Such person shall be permitted to make a reasonable number of
      telephone calls as may be required to secure an attorney.

(Emphasis added.)

      Campbell-Scott states he invoked his section 804.20 “statutory right while

still on scene at the accident,” and, citing State v. Moorehead, 699 N.W.2d 667,

672 (Iowa 2005), he asserts that right was violated because he was not allowed

“to make his phone call immediately upon arrival at the police station.” The State

concedes that Campbell-Scott asked to call his girlfriend at the scene of the

crash. However, it argues the State’s obligations under section 804.20 were

satisfied when Campbell-Scott was permitted to contact his girlfriend at the police

station before any field sobriety testing began. We agree.

      It is true Campbell-Scott was not permitted to call his girlfriend

immediately after his initial request. But, section 804.20 does not contain the

word “immediately.” Rather, as set out above, it only requires the call be granted

“without unnecessary delay after arrival at the place of detention.” Iowa Code

§ 804.20.   A section 804.20 claim “must be decided in the context of the

situation” the defendant was in at the time of the request, see State v. Bowers,

661 N.W.2d 536, 542 (Iowa 2003), and we apply “an objective consideration of

the statements and conduct of the arrestee and peace officer, as well as the

surrounding circumstances” concerning the request, Moorehead, 699 N.W.2d at

672. Here, Campbell-Scott was permitted to call his girlfriend after arriving at the

police station before the implied consent advisory was read to him, and there is
                                          9


no evidence that the short “delay,” if any, was excessive.         Campbell-Scott’s

section 804.20 rights were not violated in this case; therefore, Campbell-Scott’s

trial counsel had no duty to file a motion to suppress on this basis. 2 See Ross,

845 N.W.2d at 698 (“Trial counsel has no duty to raise an issue that lacks

merit.”). Consequently, Campbell-Scott’s claim of ineffective assistance on this

point fails as a matter of law.

       B. Miranda Violation.

       At the scene, after Campbell-Scott was captured and handcuffed, he was

advised of his Miranda rights.      Thereafter, Campbell-Scott asked to call his

girlfriend and an officer told him, “Yep, we’ll make phone calls and get everything

squared away in just a second.”         Officers asked Campbell-Scott questions

thereafter, including who owned the car and if Campbell-Scott had been drinking.

Campbell-Scott answered their questions. He was placed in the squad car with

his passenger about seven minutes after asking to call his girlfriend. Shortly

thereafter, an officer came back to the car and gave the Miranda warnings to

both Campbell-Scott and the passenger. After verifying that both Campbell-Scott

and the passenger understood, the following exchange occurred:

             CAMPBELL-SCOTT: We exercise our rights to remain silent.
             OFFICER: Well good. I would too after we just found the
       gun, man. Okay?
             CAMPBELL-SCOTT: What gun?
             OFFICER: The gun that’s . . . about five feet from the car.
             [CAMPBELL-SCOTT OR PASSENGER]: [Unintelligible].
             OFFICER: The handgun that’s five feet from the car.
             CAMPBELL-SCOTT: Who’s side? What you talking about?

2
 See also our opinion of State v. Smith, No. 16-0749, 2017 WL _____, at *_ (Iowa Ct.
App. Feb. 8, 2017) (The approximately eleven minutes that passed between the time of
Smith’s arrival at the police station and the time he was allowed to make a phone call
was not an “unnecessary delay” and did not violate section 804.20.).
                                         10


              OFFICER: You better decide that.

A few minutes later, the officer returned to the car and told Campbell-Scott and

the passenger, “Guys, I’m sorry. I meant plural. Plural. Okay? Thank gosh for

in car camera videos too.”

       Campbell-Scott was transported to the police station shortly thereafter and

taken to an interview room. Prior to the start of the interview, the officer again

advised Campbell-Scott of his rights under Miranda, and Campbell-Scott agreed

to talk to the officer. About an hour into the interview, after the officer mentioned

the guns found at the scene, Campbell-Scott told the officer he wanted a lawyer.

The officer essentially tried to persuade Campbell-Scott to talk to him, but

Campbell-Scott repeated that he wanted a lawyer, and the officer ended the

interview.

       On appeal, Campbell-Scott argues that, “[g]iven the totality of the

circumstances, it is clear that the officers violated Campbell-Scott’s invocation of

his right to remain silent and his statements should have been excluded” by way

of a motion to suppress. He maintains that his statement in the squad car, that

he was exercising his right to remain silent, meant any further conversation with

him by the officers violated his Miranda rights. We disagree.

       “Law enforcement officers are required to give Miranda warnings when a

suspect is in custody and subjected to interrogation.” Schlitter, 881 N.W.2d at

395. “For purposes of the Fifth Amendment, a suspect is in custody ‘as soon as

a suspect’s freedom of action is curtailed to a “degree associated with formal

arrest.”’” State v. Tyler, 867 N.W.2d 136, 171 (Iowa 2015) (citations omitted). “In

a Miranda claim, interrogation consists of the express questioning and words and
                                         11


actions beyond those normally part of arrest and custody ‘that the police should

know are reasonably likely to elicit an incriminating response from the suspect.’”

Schlitter, 881 N.W.2d at 395.

       “When a suspect invokes the right to remain silent, the authorities must

scrupulously honor the suspect’s right to cut off questioning.” State v. Palmer,

791 N.W.2d 840, 848 (Iowa 2010). In determining whether the suspect’s right

was “scrupulously” honored, we examine the totality of the circumstances,

considering whether: (1) the police immediately ceased the interrogation upon

the suspect’s invocation of his right to remain silent, (2) the police resumed

questioning only after the passage of a significant period of time, (3) before

resuming questioning, the police provided the suspect with a fresh set of Miranda

warnings, and (4) a new police officer, in another location, restricted the second

interrogation to a crime that had not been a subject of the earlier interrogation.

See id. at 846. Yet, a suspect’s “invocation of the right to remain silent [does] not

‘create a per se proscription of indefinite duration upon any further questioning by

any police officer on any subject, once the person in custody has indicated a

desire to remain silent,’” including “subsequent questioning by the same officer

about the same crimes.” Id. at 849 (citation omitted).

       Here, it is true that the period of time that passed between Campbell-

Scott’s statement in the squad car and the subsequent interview at the police

station was relatively short.     Nevertheless, considering the totality of the

circumstances, we do not find the officer failed to scrupulously honor Campbell-

Scott’s initial request to exercise his rights. Though the officer made a comment

immediately following Campbell-Scott’s initial request to exercise his rights while
                                          12


in the squad car, the comment did not rise to the level of an “interrogation,” even

if it did elicit a response from Campbell-Scott. Most importantly, Campbell-Scott

was again advised of his Miranda rights at the police station prior to the interview,

and he agreed to speak to the officer; there is no evidence Campbell-Scott’s

decision was not knowingly, voluntarily, or intelligently made. Given the totality of

the circumstances, Campbell-Scott’s rights under Miranda were not violated.

Accordingly, Campbell-Scott’s trial counsel had no duty to file a motion to

suppress on this basis, see Ross, 845 N.W.2d at 698, and his claim of ineffective

assistance on this point fails as a matter of law.

       C. Jury Instruction.

       The jury was instructed:

                      The word “possession” includes actual as well
              as constructive possession, and also sole as well as
              joint possession.
                      A person who has direct physical control of
              something on or around his/her person is in actual
              possession of it.
                      A person who is not in actual possession, but
              who has knowledge of the presence of something and
              has the authority or right to maintain control of it either
              alone or together with someone else, is in
              constructive possession of it.
                      If one person alone has possession of
              something, possession is sole. If two or more
              persons share possession, possession is joint.

See also Iowa Crim. Jury Instructions 200.47. Campbell-Scott asserts his trial

counsel was ineffective because he did not object to the jury instruction’s

omission of this sentence: “A person’s mere 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.”        Campbell-Scott maintains that because that
                                          13


sentence was not included, the instruction was incorrect and authorized the jury

to find him guilty without the necessary proof. See Cashen, 666 N.W.2d a 572

(“A defendant’s mere proximity to contraband is insufficient to support a finding of

constructive possession.”). He argues his trial counsel had a duty to object to the

instruction, and he was prejudiced by that failure.

       “In a criminal case, the district court is required to instruct the jury as to the

law applicable to all material issues in the case.” State v. Becker, 818 N.W.2d

135, 141 (Iowa 2012), rev’d on other grounds, Alcala v. Marriott Int’l, Inc., 880

N.W.2d 699, 708 (Iowa 2016). Though “trial courts should generally adhere to

the uniform instructions,” id. at 143, “the 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. Edouard, 854

N.W.2d 421, 434 (Iowa 2014), rev’d on other grounds, Alcala, 880 N.W.2d at

708.   “The validity and sufficiency of jury instructions are not evaluated in

isolation, but rather in context with other instructions as a whole.”           State v.

Schuler, 774 N.W.2d 294, 297 (Iowa 2009). But, in the context of a claim that

counsel was ineffective for failing to preserve error, “the instruction complained of

[must be] of such a nature that the resulting conviction violate[s] due process.”

State v. Thorndike, 860 N.W.2d 316, 321 (Iowa 2015) (citations omitted).

Notably, while an argument that counsel failed to object to an erroneous jury

instruction has appeal, that appeal “is diminished in most situations where

practical considerations make it unlikely that the inclusion of a particular element

in the marshaling instruction would have produced any difference in the verdict of

the jury.” State v. Broughton, 450 N.W.2d 874, 876 (Iowa 1990). Consequently,
                                         14


when such a claim is made, the defendant “must affirmatively demonstrate

counsel’s alleged deficiency undermines our confidence in the verdict and

therefore resulted in prejudice entitling him to a new trial, regardless of whether

his claim would require reversal if it were before [the court] on direct appeal.”

Thorndike, 860 N.W.2d at 321-22.

       Here, viewing the instructions as a whole, we believe they fairly state the

law as applied to the facts of the case. Nevertheless, even if the instruction had

been altered following an objection by Campbell-Scott’s trial counsel, we are not

convinced on this record there is a reasonable probability the outcome of the

proceeding would have been different.          As explained above, the evidence

provides circumstances from which the jury could lawfully infer Campbell-Scott

had knowledge of and dominion over a firearm—namely, his elusion of the police

and the presence of two guns found at the scene of the crash after he and his

passenger attempted to flee. This evidence is more than Campbell-Scott’s mere

proximity to the contraband found. Because Campbell-Scott has not affirmatively

demonstrated that the inclusion of the sentence in the instructions would have

produced any difference in the verdict of the jury, Campbell-Scott cannot

establish he was prejudiced by his counsel’s alleged failure. Accordingly, his

claim of ineffective assistance of counsel on this point fails as a matter of law.

       D. Cumulative Error.

       Finally, Campbell-Scott asserts a general claim that, when all of the errors

are considered together, the cumulative effect deprived him of a fair trial. See

Clay, 824 N.W.2d at 501 (“[I]f a claimant raises multiple claims of ineffective

assistance of counsel, the cumulative prejudice from those individual claims
                                        15


should be properly assessed under the prejudice prong.”). Having found no merit

to Campbell-Scott’s underlying claims that his rights under Iowa Code section

804.20 and Miranda were violated, and having concluded he failed to establish

prejudice concerning the jury instruction, we reject his claim of cumulative error.

See id. at 501-02; see also State v. Artzer, 609 N.W.2d 526, 532 (Iowa 2000);

Wemark v. State, 602 N.W.2d 810, 818 (Iowa 1999).

      IV. Conclusion.

      Although the firearms were not found in Campbell-Scott’s physical

possession at the time of his arrest, viewing the facts in the light most favorable

to the State, we conclude there is substantial evidence from which the jury could

find one of the firearms was in Campbell-Scott’s constructive possession. We

find no merit to Campbell-Scott’s ineffective-assistance-of-counsel claims for

failure to file a motion to suppress because we find his underlying claims that his

rights under Iowa Code section 804.20 and Miranda were violated have no merit.

Additionally, we find Campbell-Scott failed to show he was prejudiced by his trial

counsel’s failure to object to the omission of proximity language in the jury

instruction because Campbell-Scott has not affirmatively demonstrated that the

inclusion of the sentence in the instructions would have produced any difference

in the verdict of the jury.     We also reject his claim of cumulative error.

Accordingly, we affirm Campbell-Scott’s convictions.

      AFFIRMED.
