                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0667
                            Filed September 23, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RICHARD LEE DAVID BROWN,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom

(motion to suppress) and Richard G. Blane II (trial), Judges.



      The defendant appeals his conviction of possession of a controlled

substance with intent to deliver. AFFIRMED.



      Tabitha L. Turner of Turner Law Firm, P.L.L.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Mary A. Triick,

Assistant Attorneys General, John P. Sarcone, County Attorney, and Stephan

Bayens and Joseph Crisp, Assistant County Attorneys, for appellee.



      Considered by Tabor, P.J., McDonald, J., and Sackett, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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SACKETT, Senior Judge.

       Richard Brown appeals his conviction for possession of a controlled

substance with intent to deliver. He contends the district court erred in denying

his motion to suppress and his motion for a mistrial.      He also contends the

evidence is insufficient to support his conviction.

I.     BACKGROUND FACTS AND PROCEEDINGS.

       On the night of June 29, 2013, Des Moines Police Officers Peter Wilson,

Todd Wilshusen, and Jared Underwood were patrolling University Avenue in a

marked police vehicle when they observed Brown and a companion. When the

officers stopped to talk to Brown’s companion, Brown changed course and

hurried across the street, narrowly avoiding being struck by a car. Believing

Brown was attempting to avoid them, the officers turned to follow Brown. When

Brown saw the officers were following him, he ran up to a tree approximately

fifteen feet from the sidewalk and appeared to toss something on the ground

before darting back to the sidewalk and continuing to walk in the direction he had

been headed.

       Officer Wilson pulled the police vehicle up to Brown and began

questioning him. Brown stated he was in a hurry, not running from the officers.

At the same time, Officer Wilshusen searched the area Brown appeared to throw

something and located a plastic baggie containing five individually-wrapped

“rocks,” which were later identified as crack cocaine. The bag was clean and dry,

and the crack cocaine—each rock worth approximately $100 each on the

street—was packaged consistent with how crack cocaine is distributed. Brown
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denied he had dropped anything by the tree or that the crack cocaine belonged

to him.

       The State charged Brown with possession of a controlled substance with

intent to deliver. The State further alleged Brown was a second or habitual

offender, and therefore, the sentencing provisions of Iowa Code sections

124.411 and 902.8 (2013) applied.

       Brown moved to suppress the evidence, which the district court denied.

Brown was convicted as charged at the close of a jury trial and was sentenced to

a term of imprisonment not to exceed thirty years.

II.    MOTION TO SUPPRESS.

       Brown contends the district court erred in denying his motion to suppress,

alleging he was unconstitutionally seized. We review constitutional questions de

novo. State v. Lowe, 812 N.W.2d 554, 566 (Iowa 2012). This requires us to

make an independent evaluation of the totality of circumstances as shown by the

entire record, including the evidence presented at the suppression hearing. Id.

We give deference to the district court’s fact findings, especially those concerning

witness credibility, though we are not bound by them. Id.

       Whether a person has been seized is determined by the totality of the

circumstances. Id. at 570. Generally, police questioning does not constitute

seizure. Id.

              Law enforcement officers do not violate the Fourth
       Amendment’s prohibition of unreasonable seizures merely by
       approaching individuals on the street or in other public places and
       putting questions to them if they are willing to listen. Even when
       law enforcement officers have no basis for suspecting a particular
       individual, they may pose questions, ask for identification, and
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      request consent to search luggage—provided they do not induce
      cooperation by coercive means.

United States v. Drayton, 536 U.S. 194, 200-01 (2002).               “Unless the

circumstances of the encounter are so intimidating as to demonstrate that a

reasonable person would have believed he was not free to leave if he had not

responded, one cannot say that the questioning resulted in a detention under the

Fourth Amendment.” INS v. Delgado, 466 U.S. 210, 216 (1984).

      To be considered a seizure, there must be “objective indices of police

coercion.” Lowe, 812 N.W.2d at 570. The display of a badge, being in uniform,

or being visibly armed has been given little weight in the analysis. Id. However,

using a commanding or threatening tone, displaying a weapon, or touching a

suspect would be a sign of a seizure. Id. The question we must ask is whether

the officers impaired the defendant’s free will or whether the officers simply

engaged the defendant in conversation. See id.

      Brown argues he was detained without probable cause when Officer

Wilson called his name “in such a manner that made Brown feel as though he

was not free to leave.” This is insufficient to qualify as a seizure. See State v.

Reinders, 690 N.W.2d 78, 82-83 (Iowa 2004) (rejecting the defendant’s claim he

was seized because “no reasonable individual would have felt free to simply walk

away and refuse to answer the officer’s questions”). Although the officers were

in uniform and a marked police vehicle, Officer Wilson simply called to Brown by

name and asked him questions. There was no show of authority, no intimidation,
                                           5



and no use of physical force by the officers during the encounter. Accordingly,

the district court properly denied Brown’s motion to suppress.1

III.   SUFFICIENCY OF THE EVIDENCE.

       Brown next contends the evidence is insufficient to support his conviction.

We review this claim for correction of errors at law. See State v. Edouardo, 854

N.W.2d 421, 431 (Iowa 2014). In reviewing challenges to the sufficiency of the

evidence, we consider the evidence and all reasonable inferences that may be

fairly drawn from it in the light most favorable to the State. Id. at 437. We

consider all the record evidence and will uphold the verdict if substantial

evidence supports it. Id. Evidence is substantial if it can convince a rational

factfinder the defendant is guilty beyond a reasonable doubt. Id. The factfinder

is free to accept or reject the evidence as it sees fit. Id.

       To be guilty of possession with intent to deliver, the State was required to

prove Brown was knowingly in possession of crack cocaine, he knew the

substance he possessed was crack cocaine, and he had the intent to deliver the

crack cocaine.    See State v. Scalise, 660 N.W.2d 58, 64 (Iowa 2003).              He

challenges the evidence regarding each of these elements.


1
  Brown does not state which evidence he seeks to have suppressed. His motion only
states he seeks to suppress “all evidence through the illegal search and seizure.” For
the purposes of this appeal, we presume he seeks to have the crack cocaine found near
the tree suppressed. However, even if Brown had been illegally seized, it would not be a
basis to suppress the crack cocaine because that evidence is “not fruit of any seizure”
but rather abandoned property. See California v. Hodari D., 499 U.S. 621, 629 (1991)
(holding cocaine the defendant threw while fleeing from police was “not the fruit of a
seizure” but was abandoned by the defendant); State v. Bumpus, 459 N.W.2d 619, 625
(Iowa 1990) (holding the defendant lacked standing to challenge a search of property
because he had voluntarily abandoned it and no longer has a reasonable expectation of
privacy with regard to that property); State v. Phipps, 528 N.W.2d 665, 668 (Iowa Ct.
App. 1995) (holding the defendant lost any reasonable expectation of privacy he had in
marijuana when he removed it from his pocket and threw it on the ground).
                                        6



      A. Possession.

      In order to prove the element of possession, the State was required to

show Brown “exercised dominion and control over the contraband, had

knowledge of the contraband’s presence, and had knowledge the material was a

narcotic.” State v. Kern, 831 N.W.2d 149, 160 (Iowa 2013) (internal quotation

marks omitted). Possession may be actual or constructive. State v. Thomas,

847 N.W.2d 438, 442 (Iowa 2014).            Actual possession occurs when the

contraband is found on the defendant’s person or “when substantial evidence

supports a finding it was on [the defendant’s] person at one time. Id. (emphasis

added) (internal quotation marks omitted). In other words, actual possession can

be proved by direct or circumstantial evidence. Id.

      Substantial evidence supports the finding that Brown was in actual

possession of crack cocaine.       When police officers approached Brown’s

companion, Brown immediately changed directions and crossed the street in

such a hurry that he was almost hit by a vehicle. The officers redirected their

attention to Brown, who they observed leaving the sidewalk, walking

approximately fifteen feet into the yard of a residence, and tossing something on

the ground near a tree before returning to the sidewalk. When the area Brown

was seen was searched moments later, the officers found a plastic bag

containing crack cocaine. The bag was sitting on the grass and was clean.

Viewed in the light most favorable to the State, the circumstantial evidence is

sufficient to support a finding Brown was in possession of the crack cocaine.
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       B. Knowledge.

       Brown’s argument that he did not have knowledge of the narcotic nature of

the crack cocaine is the same as his argument he did not possess the crack

cocaine. He notes that he denied knowledge of the crack cocaine to the officers

after it was discovered.

       Substantial evidence supports a finding he knew the narcotic nature of the

crack cocaine. Knowledge of the narcotic nature of a drug may be shown by

conduct, behavior, and declarations of the accused.         State v. Reeves, 209

N.W.2d 18, 22 (Iowa 1973). Here, Brown’s evasive behavior in avoiding the

officers and disposing of the crack cocaine leads to the reasonable inference he

knew it was a narcotic.

       C. Intent.

       Finally, Brown argues there is insufficient evidence to support a finding he

had intent to deliver the crack cocaine. He notes one of the officers testified it

was “possible” that the amount of crack cocaine found at the scene had been

purchased for individual use.

       Because intent is difficult to prove by direct evidence, circumstantial

evidence and the inferences drawn from it are usually used to prove intent. State

v. Grant, 722 N.W.2d 645, 647-48 (Iowa 2006). Law enforcement personnel

experienced in the area of buying and selling drugs may provide evidence to aid

the trier of fact in determining intent. Id. at 648. Additionally, intent to deliver

may be inferred from the manner in which the drugs are packed, large amounts

of unexplained cash, and the quantity of drugs possessed. Id.
                                          8



       There is sufficient evidence upon which the factfinder could infer Brown’s

intent to deliver the crack cocaine. There were five rocks of crack cocaine inside

the bag the officers found.      Each rock of crack cocaine was packaged for

individual sale in a manner typically used by drug dealers. Officer Underwood

testified that because crack cocaine is “very addictive” and most users smoke it

at the time of purchase rather than keeping a quantity with them, users are

typically found with “possibly one crack rock” on them. He further testified that

for this reason, most users are also found with “a pipe for smoking the narcotic,

which is generally a glass pipe and a lighter.” Brown was not in possession of

any of the paraphernalia used to smoke crack cocaine at the time of his arrest.

Additionally, Brown was in an area known to be popular for dealing drugs. Given

the quantity of the drug found, the way it was packaged, and the lack of

paraphernalia found with Brown, there is sufficient evidence for a reasonable

factfinder to infer Brown intended to sell the drug rather than use it himself.

IV.    MOTION FOR MISTRIAL.

       Finally, Brown contends the district court erred in denying his motion for

mistrial. He asserts a mistrial was warranted because one of the witnesses

referred to “all felony distributing cases,” indicating Brown’s case was also a

felony matter.

       To preserve error, a motion for mistrial must be made when the grounds

first become apparent.     State v. Jirak, 491 N.W.2d 794, 796 (Iowa Ct. App.

1992). Brown’s trial counsel did not object to the testimony in question. Instead,

an off-the-record discussion was had at the end of the State’s direct examination.
                                         9



No motion for mistrial was made until the witness’s testimony had concluded

entirely. Accordingly, error was not preserved.

       Brown makes a general claim of ineffective assistance of counsel, alleging

the record is insufficient to address any issues of ineffective assistance and they

should be preserved for a postconviction-relief proceeding.         It is no longer

necessary to preserve a claim of ineffective assistance of counsel by raising the

claim on direct appeal. Iowa Code § 814.7. To the extent that he may seek to

raise a claim of ineffective assistance of counsel related to his trial counsel’s

failure to preserve error on this claim, this issue may be raised in a timely

postconviction-relief proceeding. See id. § 822.7 (“All other applications must be

filed within three years from the date the conviction or decision is final or, in the

event of an appeal, from the date the writ of procedendo is issued.”).

       AFFIRMED.
