                   IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0670
                              Filed March 21, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RYAN J. DUNCAN,
     Defendant-Appellant.
______________________________________________________________

      Appeal from the Iowa District Court for Scott County, Paul L. Macek (trial)

and Stuart P. Werling (sentencing), Judges.



      Defendant appeals his conviction for delivery of a controlled substance

(methamphetamine). AFFIRMED.




      Lauren M. Phelps, Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.




      Considered by Danilson, C.J., Bower, J., and Goodhue, S.J.*

      Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
                                           2


BOWER, Judge.

       Ryan Duncan appeals his conviction for delivery of a controlled substance

(methamphetamine). We determine there is sufficient evidence in the record to

support Duncan’s conviction.       We find the district court did not abuse its

discretion in its response to the jury’s questions. We find the district court did not

err in determining Iowa Code section 124.411 (2015) could be applied to

enhance Duncan’s sentence. We conclude all of Duncan’s claims of ineffective

assistance by defense counsel should be preserved for possible postconviction

proceedings. We affirm Duncan’s conviction and sentence.

       I.     Background Facts & Proceedings

       On November 3, 2015, Officer Andrew Raya, who was working

undercover with the Quad-City Metropolitan Enforcement Group (MEG), made

arrangements to purchase 3.5 grams of methamphetamine from Duncan for

$315. Officer Raya met Duncan in a Hy-Vee parking lot in Davenport at about

1:35 p.m. Duncan was sitting in the driver’s seat of a gold Cadillac. One of the

surveillance agents for the purchase was Special Agent Jereme Hatler of the

United States Drug Enforcement Administration, who stated he observed Officer

Raya approach “a male human being” in a gold Cadillac. Officer Patrick Mesick,

who was also with the MEG, stated he observed Duncan driving a gold Cadillac

to the Hy-Vee parking lot.

       Duncan     was   charged     with   delivery   of   a   controlled   substance

(methamphetamine), in violation of Iowa Code section 124.401(1)(c)(6), a class

“C” felony. The State also alleged Duncan was a habitual offender and would be
                                         3


subject to a sentencing enhancement under section 124.411 for committing a

second or subsequent drug-related offense. Duncan gave notice of defenses of

entrapment and diminished responsibility.

       Duncan waived reporting of the proceedings impaneling the jury. During

the trial, Officer Raya identified Duncan in the courtroom as the person who sold

him methamphetamine. He noted Duncan had distinctive tattoos on his neck,

which he had observed at the time of the drug transaction.           Officer Mesick

testified he was shown a photograph of Duncan before the sale. He identified

Duncan in the courtroom, stating he resembled the person in the photograph.

       After the State’s evidence, the district court denied Duncan’s motion for

directed verdict. Duncan testified he did not sell methamphetamine to Officer

Raya on November 3, 2015.         In rebuttal, Officer Raya testified he obtained

Duncan’s cell phone number from a confidential informant. He stated he called

the number, set up the drug transaction, and met Duncan for the drug buy as

arranged. Officer Raya testified he had absolutely no doubt the person he met

was Duncan. The court denied Duncan’s renewed motion for a directed verdict.

       While the jury was deliberating, they sent two questions to the court,

“When judging the credibility of the defendant, what effect should the defendant’s

conviction for burglary [have], if any?” and “Can the lack of easily obtained

evidence be considered when determining reasonable doubt?”               The State

suggested telling the jury to re-read Instructions 7 through 13, which were the

instructions for evaluating the evidence. Defense counsel stated the jury should

be pointed in the direction of Instructions 10 and 12, “and I don’t necessarily think
                                          4


that that means that they would not consider any of the other instructions.” The

district court ruled, “I think that the general approach is better,” and told the jury,

“Please re-read Instructions 7 through 13.”

       The jury found Duncan guilty of delivery of a controlled substance.

Duncan stipulated to prior convictions for possession of a firearm as a felon and

third-degree burglary, which were the predicate felonies for the habitual offender

enhancement. He also stipulated to two previous convictions for sponsoring a

gathering where controlled substances were used, in violation of section

124.407, for the section 124.411 sentencing enhancement.

       At the sentencing hearing, Duncan argued he should not be subject to the

enhancement in section 124.411 because his previous convictions under section

124.407 involved marijuana. The court determined Duncan should serve a term

of ten years, which was increased to fifteen as Duncan was a habitual offender,

and then doubled pursuant to section 124.411, giving Duncan a term of

imprisonment not to exceed thirty years.1 Duncan now appeals his conviction

and sentence.

       II.    Sufficiency of the Evidence

       Duncan claims there is insufficient evidence in the record to support his

conviction. Specifically, he states there was not substantial evidence to show he

was the person who sold methamphetamine to Officer Raya. Our review of a

challenge to the sufficiency of the evidence is for correction of errors at law.




1
    The court exercised its discretion by doubling the sentence, which could have been
tripled.
                                        5

State v. Tipton, 897 N.W.2d 653, 692 (Iowa 2017). “We will uphold a verdict if it

is supported by substantial evidence.” Id.

      “Inherent in our standard of review of jury verdicts in criminal cases is the

recognition that the jury [is] free to reject certain evidence and credit other

evidence.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). The strength of

identity evidence is a question for the jury. State v. Shorter, 893 N.W.2d 65, 74

(Iowa 2017). The jury could find Officer Raya’s testimony that he personally

observed Duncan sell methamphetamine to him more credible than Duncan’s

testimony he did not make the sale. We determine there is sufficient evidence in

the record to support Duncan’s conviction for delivery of a controlled substance.

      III.   Jury Questions

      Duncan claims the district court abused its discretion in its response to the

jury’s questions. He states the court should have directed the jury to re-read

Instructions 10 and 12, rather than suggesting they re-read Instructions 7 to 13.

Instruction 10 noted Duncan had admitted he was previously convicted of a crime

and stated, “You may use that evidence only to help you decide whether to

believe the witness and how much weight to give his testimony.” Instruction 12

set out the law concerning reasonable doubt. Duncan states the court should

have pointed out these two instructions, which more closely aligned to the jury’s

two questions.

      The court has discretion to respond to a jury’s questions or to refrain from

responding. State v. McCall, 754 N.W.2d 868, 871 (Iowa Ct. App. 2008). “A

discretionary ruling is presumptively correct, and on appeal will be overturned
                                            6


only where an abuse of discretion has been demonstrated. An abuse is found

only where the discretion is exercised on grounds or for reasons clearly

unreasonable.” Id. (citation omitted).

       We find the district court did not abuse its discretion in its response to the

jury’s questions. Instructions 7 through 13 informed the jury of the basic rules for

the consideration of evidence.2 Rather than point out two of the principles for the

jury to consider, the court properly told the jury to re-read all of the instructions on

this subject. The court could properly tell the jury to review the instructions. See

State v. Williams, 341 N.W.2d 748, 752 (Iowa 1983).

       IV.    Sentencing

       Duncan claims the district court should not have applied section 124.411

to double his sentence.       He states his two prior convictions under section

124.407 for sponsoring a gathering where controlled substances were used

should not be considered as predicate offenses for enhancement under section

124.411 because the controlled substance used at the gatherings was marijuana

and possession of marijuana under section 124.401(5) is a not a predicate

offense for enhancement under section 124.411. “We review the district court’s

interpretation and application of a sentencing statute for the correction of errors

at law.” State v. Johnson, 630 N.W.2d 583, 586 (Iowa 2001).


2
   Instruction 7 informed the jury what could be considered as evidence and what could
not. Instruction 8 set out the differences between direct and circumstantial evidence.
Instruction 9 told the jury to decide the facts from the evidence and consider the
credibility of witnesses. Instruction 10 stated the defendant’s admission of a prior crime
could be considered in determining credibility. Instruction 11 discussed eyewitness
identification. Instruction 12 set out the concept of guilt beyond a reasonable doubt.
Instruction 13 told the jury all the instructions should be considered together and its
decision should be based on the evidence.
                                          7


       Section 124.411 applies to “[a]ny person convicted of a second or

subsequent offense under this chapter.” Under section 124.411(3), there is an

exception for “offenses under section 124.401, subsection 5.”            One of the

offenses under section 124.401(5) is the possession of marijuana. Duncan was

not previously convicted under section 124.401(5).        He was convicted under

section 124.407, “Gatherings where controlled substances unlawfully used.” The

legislature has specifically determined the sentencing enhancement in section

124.411 does not apply when the underlying offense is a violation of section

124.401(5).    Iowa Code § 124.411(3).         The legislature has not excluded

convictions under section 124.407, and such convictions would therefore be

included under the general provision concerning previous convictions under

chapter 124. See State v. Walden, 870 N.W.2d 842, 846 (Iowa 2015) (“[T]he

express mention of one thing implies the exclusion of other things not specifically

mentioned.”). We find the district court did not err in its interpretation of section

124.411.

       V.     Ineffective Assistance

       Duncan claims he received ineffective assistance from defense counsel

on several different issues. We conduct a de novo review of claims of ineffective

assistance of counsel. State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To

establish a claim of ineffective assistance of counsel, a defendant must prove (1)

counsel failed to perform an essential duty and (2) prejudice resulted to the

extent it denied the defendant a fair trial. Id. A defendant’s failure to prove either
                                         8


element by a preponderance of the evidence is fatal to a claim of ineffective

assistance. State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).

       When a defendant raises a claim of ineffective assistance of counsel in a

direct appeal, we may address the issue if the record is adequate to decide the

claim or we may preserve the issue for possible postconviction proceedings.

State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). “Only in rare cases will the

trial record alone be sufficient to resolve the claim on direct appeal.”        Id.

Furthermore, where the claim involves trial strategy or tactics it is preferable to

give defense counsel an opportunity to defend against the charge of ineffective

assistance. State v. McNeal, 867 N.W.2d 91, 106 (Iowa 2015).

       Duncan claims he received ineffective assistance because defense

counsel failed to: (1) have jury selection recorded in its entirety; (2) object

because he was required to wear a “jail armband” during the trial; (3) request an

instruction on entrapment and argue entrapment to the jury; (4) move to strike a

juror whose spouse worked at the county jail; and (5) subpoena Officer Raya’s

cell phone records.     Duncan agrees the present record is not adequate to

address issues (1), (2), and (4). On issue (5), he acknowledges the record might

be insufficient to address his claim on direct appeal.

       Issue (3) involves a matter of trial strategy and tactics concerning whether

to present a defense of denial or entrapment, or to present alternative defenses.

Also, on issue (5), there is no evidence as to whether the cell phone records

were available and, if they were, whether they would contain evidence helpful to
                                      9


the defense. We conclude all of Duncan’s claims of ineffective assistance by

defense counsel should be preserved for possible postconviction proceedings.

      We affirm Duncan’s conviction and sentence.

      AFFIRMED.
