                       IN THE COURT OF APPEALS OF IOWA

                                    No. 15-1111
                                Filed July 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RANDY IRVIN RUSTON,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, John C. Nelson,

District Associate Judge.




       Randy Ruston challenges the sufficiency of the evidence supporting his

conviction for possession of a controlled substance, and he asserts his trial

counsel was ineffective in failing to file a motion for new trial. AFFIRMED.




       Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey & Daane, Sioux

City, for appellant.

       Thomas J. Miller, Attorney General, and Jean C. Pettinger and Tyler J.

Buller, Assistant Attorneys General, for appellee.




       Considered by Vogel, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.

       Randy Ruston challenges the sufficiency of the evidence supporting his

conviction for possession of a controlled substance. He also asserts his attorney

was ineffective in failing to file a motion for new trial. Because there is sufficient

evidence to support a finding Ruston constructively possessed the marijuana

discovered in his vehicle, we affirm his conviction. Additionally, we conclude

Ruston’s trial counsel was not ineffective.

       I. Background Facts and Proceedings.

       Randy Ruston of Inola, Oklahoma, is a self-employed commercial truck

driver. He was returning to Oklahoma after making a delivery in North Dakota

when he stopped at the Iowa Department of Transportation (IDOT) Salix weigh

station on Interstate 29 in Woodbury County shortly after 3:00 p.m. on November

20, 2014. When Ruston pulled in, IDOT Motor Vehicle Enforcement Officer Kurt

Miene noticed that both the left and right front windows of Ruston’s four-door

dually pickup were rolled down completely.           It was a cold day, and the

temperature at the time was in the 20’s. Officer Miene had Ruston stop and told

him to roll up the passenger window. When Ruston complied, Officer Miene

noticed the window was tinted and that the truck did not display the required

USDOT markings. As a result, the officer decided to inspect Ruston’s vehicle.

He directed Ruston to park the truck in the rear parking lot and enter the scale for

inspection. Ruston came into the scale with his permits. The pair then walked

out to the truck for the inspection.

       As Officer Miene approached the driver’s side of the truck, Ruston was

already at the truck and had the rear door open. From several feet away, Officer
                                           3


Miene smelled a “very strong” and “pungent” odor of what he believed to be raw

marijuana.     Officer Miene contacted his partner, IDOT Officer M. Rader, for

assistance, as well as Deputy Troy Tadlock of the Woodbury County Sheriff’s

Office K9 unit, for a drug sniff.      While awaiting their arrival, Officer Miene

informed Ruston of his suspicions, and Ruston consented to a search of his

truck.

         When Deputy Tadlock arrived with his dog, he smelled a very strong odor

of marijuana coming from the truck. While walking around the vehicle, the dog

did “show some interest.” The dog was put inside the truck and “he indicated by

scratching on the center console.”1

         The officers then searched the interior of the truck. They discovered a pill

bottle bearing Ruston’s name in the center console. The pill bottle was empty

other than “a little bit” of what Officer Miene referred to as “marijuana debris” or

“shake.” The amount—a “little bit of dust”—was too small to submit to the lab for

testing “because there wouldn’t be enough of that to give a confirmed test result.”

When opened, the bottle “[s]melled very strongly of marijuana.”

         After twenty minutes of searching, the officers found a plastic bag

containing a “[s]mall amount” of marijuana and some rolling papers under a floor

mat on the passenger side of the backseat, directly behind the front passenger’s

seat. The floor mat was “real tight and . . . molded to the floor.” The lab report

indicated the marijuana weighed one-half gram. “Because of the overwhelming


1
 On cross-examination, Deputy Tadlock testified the dog did not give any sign of
smelling the presence of marijuana inside the truck. He explained, dogs are trained to
go to the source of the odor, and “when there’s so much odor coming out of the car, it’s
hard for [the dogs] to go to that source.”
                                            4


strong odor of raw green marijuana [emanating from the truck],” Officer Miene

“was very surprised when [they] found this little amount that it smelled so

terrible.”

        Ruston never admitted he knew the marijuana was in the truck.                  He

informed the officers that his wife and his daughter had drug problems and used

marijuana but claimed he did not know the marijuana was in his vehicle, and

Ruston did nothing to otherwise incriminate himself.2              A field sobriety test

revealed Ruston was not under the influence of any substances.

        The State charged Ruston with possession of a controlled substance

(marijuana), in violation of Iowa Code section 124.401(5) (2013). Ruston waived

a jury trial, and a bench trial was held in March 2015. Ruston’s wife, Tammy,

testified that Ruston does not use marijuana, but she uses it “occasionally” and

has stored it in pill bottles. She claimed that the bag of marijuana belonged to

her, that she had placed it under the floor mat without Ruston’s knowledge after

traveling to a football game, and that she had forgotten that she left it there.

Ruston testified in his own defense that he could not smell the marijuana and had

no knowledge it was in his vehicle.




2
  The search of Ruston’s vehicle was recorded on Officer Rader’s in-car video. The
audio from that videotape reflects that Ruston was asked who the marijuana belonged to
and, after denying knowledge of its presence, stated, “Well, I know what it is. It’s my
weed now.” Officer Miene testified at trial that he had reviewed the videotape of the
search in the days leading up to trial and claimed that Ruston’s statement was an
admission of possession, though there is no mention of an admission in the officer’s
report. According to Ruston, he made the statement to reflect his understanding that the
marijuana was found in his vehicle and his belief that he would be held legally
responsible for it on that basis alone. In its ruling, the trial court declined to give the
comment “much weight” as an admission, noting the statement “could be construed
otherwise.”
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       At the close of the bench trial, the district court found Ruston guilty as

charged. The court ordered that Ruston serve the mandatory minimum sentence

of two days in jail and pay the minimum fine of $325, in addition to court costs

and surcharges. It also ordered the IDOT to revoke Ruston’s license for one-

hundred-eighty days as required by section 901.5(10).

       II. Scope and Standard of Review.

       Challenges to the sufficiency of the evidence supporting a conviction are

reviewed for correction of errors at law. See State v. Thomas, 561 N.W.2d 37,

39 (Iowa 1997). We review all of the record evidence in the light most favorable

to the State, including all legitimate inferences and presumptions that could be

fairly and reasonably deduced from the record. See id. If the trial court’s factual

findings are supported by substantial evidence, we are bound by them. See id.

Evidence is substantial if a rational trier of fact could conceivably find the

defendant guilty beyond a reasonable doubt. See id. Evidence that only raises

“suspicion, speculation, or conjecture” is not substantial. Id. (citation omitted).

       III. Sufficiency of the Evidence.

       Ruston challenges the sufficiency of the evidence supporting his

conviction of possession of a controlled substance. “When the State charges a

person with possession, the State must prove the person exercised dominion

and control over the contraband, had knowledge of the contraband’s presence,

and had knowledge the material was a narcotic.” State v. Maxwell, 743 N.W.2d

185, 193 (Iowa 2008). Ruston contends the evidence is insufficient to show he

had knowledge of the marijuana stashed in the truck.
                                         6


       The State counters that Ruston’s knowledge may be inferred because he

had exclusive control of the truck. Knowledge of the presence of a controlled

substance and the ability to maintain control over the controlled substance may

be inferred if the accused has exclusive possession of the premises on which a

controlled substance is found. See State v. Reeves, 209 N.W.2d 18, 23 (Iowa

1973). When the controlled substance is discovered inside a vehicle, we will not

infer knowledge and the ability to maintain control if “it has been established that

multiple individuals had equal access to the vehicle.”       State v. Dewitt, 811

N.W.2d 460, 474 (Iowa 2012). Here, Ruston owned the vehicle in which the

marijuana was discovered, it was registered in his name, and Ruston was

travelling alone in it at the time the marijuana was discovered.          However,

Ruston’s wife testified:

             Q. Over the weekend, and once the truck was home, do you
       have access to the truck? A. Yes. I get the privilege of cleaning it.
             Q. So you have joint access with Randy? A. Yeah. I drive it.
             ....
             Q. Okay. So before he left for . . . North Dakota, you had
       access to this vehicle? A. Yes.

Ruston testified that his wife had access to the truck, which he leaves unlocked

on his property and that she drives the vehicle sometimes.

       Our supreme court has articulated a number of factors to guide us in

determining whether a person constructively possesses a controlled substance

discovered in premises under joint control. See Maxwell, 743 N.W.2d at 194.

These include:

       (1) incriminating statements made by the person; (2) incriminating
       actions of the person upon the police’s discovery of a controlled
       substance among or near the person’s personal belongings; (3) the
       person’s fingerprints on the packages containing the controlled
                                        7


       substance; and (4) any other circumstances linking the person to
       the controlled substance.

Id.   Here, Ruston made no incriminating statements.       He steadfastly denied

knowledge of the bag of marijuana. Ruston made no incriminating actions upon

the officers’ discovery of the marijuana in the truck. In his report, Officer Miene

unequivocally stated that Ruston did not exhibit any suspicious behavior and

“seemed shocked” that the officers could smell the odor of marijuana coming

from his vehicle. No fingerprint evidence was presented.

       When a controlled substance is discovered inside a vehicle, we may also

consider whether the controlled substance was in plain view, was found with the

accused’s personal effects, or was found on the same side of the car or

immediately next to the accused, in addition to whether the accused is the owner

of the vehicle or engaged in any suspicious activity.       See id.   The bag of

marijuana with which Ruston is charged with possessing was not in plain view or

found inside or among Ruston’s possessions. Rather, the bag of marijuana was

concealed beneath a tight-fitting floor mat in the backseat area of the vehicle.

The bag’s location behind the passenger seat and beneath a floor mat placed it

out of Ruston’s reach in the driver’s seat. Officer Miene testified the spot where

the marijuana was discovered was an arm or an “arm and a half” from the

driver’s seat, and Deputy Tadlock described the location as “[p]robably two” arm

lengths from the driver’s seat.

       “Even if some factors are present, the court is still required to determine

whether all of the facts and circumstances create a reasonable inference that the
                                          8


person knew of the presence of the controlled substance and had control and

dominion over it.” Id.

       Ruston denied any knowledge of the presence of marijuana in his truck.

The district court carefully considered the Rustons’ testimony and did not find it to

be persuasive, explaining:

               The odor of the marijuana in and around the truck was
       strong. The pill bottle, which the court concludes had recently
       housed marijuana, bears the name of [Ruston] and is a container
       for a prescription issued to him. The pill bottle was in close
       proximity to the driver’s seat. The marijuana found on the floor of
       the rear of the cab was also in close proximity to the driver’s seat.
       The baggie of marijuana was in the back seat area with multiple
       other items belonging to [Ruston].
               [Ruston] was alone in the truck. The truck belongs to him.
       He is the primary party that uses the truck. Mrs. Ruston’s
       testimony that she hid the pot under the floor mat and forgot about
       it is not compelling.
               The alcohol discovered in the truck was covered by other
       items, suggesting purposeful furtiveness on the part of [Ruston].
       The marijuana was similarly hidden. At trial [Ruston] testified he
       rolled down the front side windows of his truck because he knew
       they were excessively tinted and he was trying to hide that fact from
       the officer, which, if believed, suggests that [Ruston] is dishonest.
               The State argued that [Ruston] did so to get the smell of
       marijuana out of the cab of the vehicle. Both explanations suggest
       that [Ruston] is less than truthful.

       “Determinations of credibility are in most instances left for the trier of fact,

who is in a better position to evaluate it.” State v. Weaver, 608 N.W.2d 797, 804

(Iowa 2000). Unlike this court, the trial court has a front row seat to observe the

“witness’s facial expressions, vocal intonation, eye movement, gestures, posture,

body language, and courtroom conduct, both on and off the stand,” as well as the

witness’s “nonverbal leakage” demonstrating “[h]idden attitudes, feelings, and

opinions” that are not reflected in the cold transcript this court reviews. Thomas

Sannito & Peter J. McGovern, Courtroom Psychology for Trial Lawyers 1 (1985).
                                          9


Consequently, the trial judge is in the best position to assess witnesses’ interest

in the trial, and their motive, candor, bias, and prejudice. See State v. Teager,

269 N.W. 349, 351 (Iowa 1936). We defer to the trial court’s assessment that the

defense witnesses were less credible that the State’s witnesses.

         Officer Miene and Deputy Tadlock testified the odor of raw marijuana was

noticeable outside of the vehicle from a distance. Officer Miene testified that the

odor was so strong that he expected to find “large quantities” or “a load” of

marijuana in the vehicle rather than a “small, personal-use baggie.” In fact, he

“was very surprised” by the small amount of marijuana they found. What was

discovered was a half gram of bagged marijuana concealed under the molded

floor mat. It is highly unlikely that this was the source of the “overwhelming

strong odor of raw green marijuana” smelled by the officers. Nevertheless, the

cab of the truck reeked of marijuana.

         The district court also noted the presence of marijuana found in the

prescription pill bottle, stating: “The pill bottle, which the court concludes had

recently housed marijuana, bears [Ruston’s name] and is a container for a

prescription issued to him. The pill bottle was in close proximity to the driver’s

seat.”

         The trial court also found: “The marijuana found on the floor of the rear of

the cab was also in close proximity to the driver’s seat. The baggie of marijuana

was in the back seat area with multiple other items belonging to [Ruston]” and

“[Ruston] was alone in the truck. The truck belongs to him. He is the primary

party that uses the truck.”
                                          10


       In view of all the facts and circumstances, coupled with the district court’s

credibility findings, and giving the evidence the required weight and inferences,

we conclude a reasonable fact-finder could determine beyond a reasonable

doubt that Ruston knew of the marijuana’s presence in the truck and, therefore,

constructively possessed the marijuana.          Accordingly, we affirm Ruston’s

conviction for possession of a controlled substance.

       IV. Ineffective Assistance of Counsel.

       Ruston asserts his trial counsel was ineffective in failing to file a motion for

new trial under State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998), which

provides that a court may grant a new trial if it concludes “that the verdict is

contrary to the weight of the evidence.” 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. See State v. Reeves, 670 N.W.2d 199, 202

(Iowa 2003). The court should only grant a new trial “in exceptional cases in

which the evidence preponderates heavily against the verdict.”            Id. (citation

omitted).

       Here, the district court did make specific credibility determinations, finding

the defense witnesses to be less credible than the State’s witnesses. To grant

an Ellis motion, the district court would have to have reversed its own findings. It

is implicit in the trial court’s decision that more credible evidence supported a

conviction than an acquittal. While this was a close case, there is no reasonable

probability the court would have granted the motion. Counsel has no duty to file

a meritless motion, and appellate courts “will not find counsel incompetent for
                                       11

failing to pursue a meritless issue.” State v. Brubaker, 805 N.W.2d 164, 171

(Iowa 2011).

      V. Conclusion.

      Sufficient evidence supports Ruston’s conviction for possession of

marijuana. Because an Ellis motion for new trial was a meritless issue, counsel

had no duty to pursue it. We therefore affirm Ruston’s conviction and sentence.

      AFFIRMED.
