               IN THE SUPREME COURT OF IOWA
                           No. 105 / 06-0228

                          Filed January 4, 2008

STATE OF IOWA,

      Appellee,

vs.

GREGORY EUGENE MAXWELL,

      Appellant.


      Appeal from the Iowa District Court for Polk County, Don C.

Nickerson (trial) and Robert A. Hutchison (sentencing), Judges.



      Gregory Eugene Maxwell appeals his conviction and sentence for

possession of a controlled substance in violation of Iowa Code section

124.401(5). AFFIRMED.



      Mark C. Smith, State Appellate Defender, Theresa R. Wilson,

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant

Attorney General, John P. Sarcone, County Attorney, and Celene Gogerty,

Assistant County Attorney, for appellee.
                                      2

WIGGINS, Justice.

      George Eugene Maxwell appeals the district court’s use of the same

two prior felony convictions to classify his crime as a felony under Iowa

Code section 124.401(5) (2005) and to sentence him as a habitual offender

under section 902.8. Maxwell also claims the district court erred when it

denied his motion for new trial without giving any reasons for its denial.

Finally, Maxwell requests this court find his trial counsel provided

ineffective assistance when he failed to object to an aiding and abetting jury

instruction, which the evidence did not support.       Because we find the

district court did not err by classifying his crime as a felony and sentencing

him as a habitual felon based on the same two prior felony convictions, the

district court correctly decided Maxwell’s motion for new trial, and his

counsel did not provide ineffective assistance, we affirm his conviction and

sentence.

      I. Background Facts and Proceedings.

      On March 19, 2005, police officer Brian Meskimen observed George

Eugene Maxwell drive out of a convenience store parking lot onto Aurora

Avenue in Urbandale. Officer Meskimen noticed Maxwell was not wearing

his seatbelt. Meskimen followed Maxwell on Aurora. Not wanting to pull

Maxwell over on the busy one-lane street, Meskimen waited to activate his

top lights until Maxwell turned down a side street. After Meskimen turned

on his top lights, Maxwell proceeded down the side street for about one-

hundred feet before turning into the driveway of his home. Maxwell stopped

the vehicle in the driveway, got out, and started walking toward his home.

      By the time Meskimen asked Maxwell to return to his vehicle,

Maxwell had reached the front stoop of his house. Maxwell complied with
                                       3

Meskimen’s request and returned to the vehicle, a silver 1983 Oldsmobile

Delta.

         As Meskimen was advising Maxwell why he stopped him, Meskimen

noticed the smell of marijuana on Maxwell. Meskimen also saw a pack of

Newport cigarettes sitting in plain view between the two front seats of the

vehicle. The front seats in Maxwell’s Oldsmobile were larger seats, more

similar to bench seats than bucket seats, with a slit and an armrest to

separate them.

         The cigarette pack was open, and Meskimen could see a plastic baggie

protruding from the pack. Meskimen testified in his five years of experience

as a police officer, he knew narcotics were often transported in empty

cigarette packs, so he read Maxwell his Miranda rights and asked him for

his driver’s license.

         Meskimen placed Maxwell in the back of his squad car, and out of

safety concerns, asked for Maxwell’s consent to search his person.

Meskimen found nothing on Maxwell other than a full pack of Newport

cigarettes.

         Meskimen then asked Maxwell if he would consent to a search of the

vehicle. Maxwell told Meskimen he was borrowing the car and was not sure

what all was in the Oldsmobile, but that Meskimen could search it.

Meskimen waited for officer Matthew McCarty to arrive on the scene before

searching the vehicle. Officer McCarty arrived and watched Maxwell in the

back of the patrol car while Meskimen searched the Oldsmobile. McCarty

did not participate in the search or the collection of evidence.

         Meskimen removed the plastic baggie protruding from the pack of

cigarettes found in the car. The baggie contained approximately ten rocks

of a white-yellowish substance. Meskimen thought the baggie contained
                                       4

crack cocaine, so he took the cigarette pack and the baggie as evidence. No

drug stamp was affixed to the substance or baggie. He continued to search

the entire vehicle, but did not seize any other items.

      The substance was transported to the department of criminal

investigation’s laboratory. The DCI lab concluded the ten rocks were 2.77

net grams of cocaine base.

      The State charged Maxwell in two counts. In count one the State

charged Maxwell with possession of a controlled substance with intent to

deliver, a class “C” felony, in violation of Iowa Code section 124.401(1)(c)(3).

In count two the State charged Maxwell with failure to possess a tax stamp,

a class “D” felony, in violation of sections 453B.3 and 453B.12. The State

also sought a habitual offender enhancement of both charges under section

902.8. Maxwell waived his right to a speedy trial and pled not guilty.

      A jury trial was held. Under the first count, the jury found Maxwell

guilty of the lesser-included offense of possession of a controlled substance

in violation of section 124.401(5). Under the second count, the jury found

Maxwell not guilty.

      Maxwell filed a motion for judgment of acquittal and a motion for new

trial. Maxwell claimed the evidence was insufficient to sustain a conviction

for the offense of possession of a controlled substance and that the verdict

was contrary to the evidence presented at trial.        The court denied the

motion without a hearing and without stating its reasons for the denial.

      After the jury verdict, the State moved to amend the trial information

to permit the enhancement of the possession-of-a-controlled-substance

charge based upon Maxwell’s two prior convictions under chapter 124. The

State also maintained its original request that the district court sentence
                                      5

Maxwell as a habitual offender.           The district court permitted the

amendment to the trial information without objection.

      Maxwell stipulated in open court to two previous felony convictions.

Maxwell stipulated that on both November 5, 1999 and May 31, 2000, he

was convicted of possession of a controlled substance with intent to deliver.

      During the sentencing hearing Maxwell challenged the State’s request

to use the 1999 and 2000 felony convictions both to classify the possession

offense as a felony and to sentence Maxwell as a habitual offender. Maxwell

argued to the court that the prior felony convictions could be used to

classify Maxwell’s current possession offense as a class “D” felony, but

those same felony convictions could not be used to sentence Maxwell as a

habitual offender.     The court rejected this argument, classified the

possession conviction as a class “D” felony, and further enhanced the

penalty by finding him to be a habitual offender. The court sentenced

Maxwell as a habitual offender.

      II. Issues.

      In his appeal Maxwell claims (1) the district court erred in classifying

his crime as a felony and sentencing him as a habitual offender based upon

the same two prior felony convictions; (2) the district court erred when it

denied Maxwell’s motion for new trial without stating the reasons for its

denial; and (3) his trial counsel provided him ineffective assistance when

counsel failed to object to the aiding and abetting jury instruction.
      III. Analysis.

      A. The Two Sentencing Enhancements Based Upon the Same

Two Prior Felony Convictions. Maxwell claims the court imposed an

illegal sentence. We consider a sentence void if a statute does not authorize

it. State v. Gordon, 732 N.W.2d 41, 43 (Iowa 2007). Therefore, we will
                                      6

examine the sentence to determine whether it complies with the relevant

statutes.    State v. Freeman, 705 N.W.2d 286, 287 (Iowa 2005).

Consequently, our review is for correction of errors at law. Id.
      The jury found Maxwell guilty of possession of a controlled substance

in violation of Iowa Code section 124.401(5). The legislature classifies a

violation of section 124.401(5) as either a misdemeanor or felony based on a

defendant’s prior drug-related convictions. Iowa Code § 124.401(5). If the

defendant has no prior drug-related convictions, a violation of section

124.401(5) is a serious misdemeanor. Id. If the defendant has one prior
drug-related conviction, a violation of section 124.401(5) is an aggravated

misdemeanor. Id. If the defendant has two prior drug-related convictions, a

violation of section 124.401(5) is a class “D” felony. Id. Because Maxwell

had two prior drug-related convictions, section 124.401(5) classified his

violation as a class “D” felony.     Maxwell does not complain that his

conviction was for a class “D” felony.

      Under the legislature’s sentencing scheme for felonies, a person

convicted of a class “D” felony, who is not a habitual offender, shall be

confined no more than five years, and in addition shall be fined at least
$750 but no more than $7500. Id. § 902.9(5). Under the same sentencing

scheme, a habitual offender shall be confined no more than fifteen years.

Id. § 902.9(3). A habitual offender includes any person convicted of a class

“D” felony who has twice before been convicted of a felony. Id. § 902.8.

Taking into consideration Maxwell’s two prior felony convictions, the district

court sentenced Maxwell to fifteen years as a habitual offender under

section 902.9(3) rather than to five years as a class “D” felon under section

902.9(5). Maxwell complains his sentence is illegal because the same prior

convictions cannot be used to classify his crime as a felony under section
                                          7

124.401(5) and to sentence him as a habitual offender under section

902.9(3). He claims he should only be sentenced for five years as a class

“D” felon.

      For Maxwell to prevail on this issue we must hold the legislature

intended chapter 124 to be comprehensive and all encompassing when it

comes to sentencing violators of chapter 124.            We have rejected this

argument in three prior decisions. See State v. Owens, 635 N.W.2d 478,
484–85 (Iowa 2001); State v. Sisk, 577 N.W.2d 414, 416 (Iowa 1998); State v.

Draper, 457 N.W.2d 600, 603–04 (Iowa 1990).              In those decisions we

discussed the interplay between sections 902.9(3) and 124.411. Section

124.411 and its predecessor, section 204.411, permit the sentencing court

to triple the term or fine it can impose for an offense committed under

chapter 124 if the conviction is a second or subsequent conviction under

chapter 124. Id. In holding the legislature did not intend chapter 124 to be

comprehensive and all encompassing in regard to sentencing offenders

under section 124.411, we determined the sentencing scheme requires the

sentencing judge to look first at the violation under chapter 124 to

determine the classification of the offense as either a felony or
misdemeanor. Draper, 457 N.W.2d at 603. Next, the sentencing judge

must look to chapter 902 to determine the appropriate sentence for the

defendant’s offense. Id. In reaching this conclusion we noted chapter 124

“clearly was not intended to stand on its own” because chapter 124 only

defines the nature of the offense without determining what sentence the

sentencing court can impose.        Id.       We also recognized section 902.9

specifically states it applies to the “ ‘sentencing of any person convicted of a

felony’ unless otherwise specified by another statute.” Id. (citation omitted).
                                     8

      Further indication the legislature intended to allow the same two

prior felonies to classify a possession charge as a class “D” felony and to

sentence a defendant as a habitual offender can be found in section

124.411.    Normally section 124.411 permits the sentencing court to

enhance the punishment if the conviction is a second or subsequent

conviction under chapter 124. Iowa Code § 124.411(1). However, the

legislature exempted this enhancement provision for possession offenses

under section 124.401(5). Id. § 124.411(3). Had the legislature wanted to

prohibit use of the same prior convictions to classify the crime as a felony

under section 124.401(5) and to sentence a defendant as a habitual

offender under section 902.9(3), it could have done so with specific

language, just as it did in section 124.411(3).

      Finally, the legislature’s purpose for enacting a recidivist statute,

such as the habitual offender enhancement, is to deter and punish

incorrigible offenders. State v. Conley, 222 N.W.2d 501, 503 (Iowa 1974).

The legislature made a policy decision to punish a person’s recidivism upon

a third felony conviction by classifying those persons as habitual offenders.

Under Maxwell’s interpretation he needs to have four prior convictions—two

drug-related and two additional felony convictions of any kind—to sentence

him as a habitual offender for violating section 124.401(5). To not allow a

court to sentence persons convicted of three drug-related felonies as

habitual offenders, without specific language exempting them from the

habitual offender statute, would severely undercut the legislative intent.

      Accordingly, the district court correctly used the same prior

convictions for classifying Maxwell’s possession charge as a felony under

section 124.401(5) and sentencing him as a habitual offender under section

902.9(3). Therefore, Maxwell’s sentence was legal.
                                       9

      B.   The Motion for New Trial.          The district court denied both

Maxwell’s motion for judgment of acquittal and his motion for new trial. In

its order the district court stated in its entirety:

            On February 2, 2006, the Defendant by and through his
      Counsel has brought before the Court a Motion for Judgment
      of Acquittal and Motion for New Trial. The Court after
      reviewing the file hereby DENIES the Defendant’s Motion for
      Judgment of Acquittal and Motion for New Trial.

Maxwell only appeals the district court’s ruling on his motion for new trial.

A motion for new trial is distinct from a motion for judgment of acquittal.

Compare Iowa R. Crim. P. 2.24(2)(b), with id. 2.19(8).

      On a motion for judgment of acquittal, the court is required to
      approach the evidence from a standpoint most favorable to the
      government, and to assume the truth of the evidence offered by
      the prosecution. If on this basis there is substantial evidence
      justifying an inference of guilt, the motion for acquittal must be
      denied.

      On a motion for new trial, however, the power of the court is
      much broader. It may weigh the evidence and consider the
      credibility of witnesses. If the court reaches the conclusion
      that the verdict is contrary to the weight of the evidence and
      that a miscarriage of justice may have resulted, the verdict may
      be set aside and a new trial granted.

      . . . The motion [for new trial] is addressed to the discretion of
      the court, which should be exercised with caution, and the
      power to grant a new trial on this ground should be invoked
      only in exceptional cases in which the evidence preponderates
      heavily against the verdict.

State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998) (quoting 3 Charles Alan

Wright, Federal Practice and Procedure § 553 (2d ed. 1982)).

      Maxwell claims the district court erred by failing to state its reasons

for denying his motion for new trial and created a situation where this court

is left with nothing to review. When making a ruling on a motion for new

trial, the trial court should state the reasons for its ruling. Although the
                                      10

trial court failed to do so, under this record we believe we can review the

district court’s ruling on Maxwell’s motion for new trial.

      “We are obliged to affirm an appeal where any proper basis appears

for a trial court’s ruling, even though it is not one upon which the court

based its holding.” Citizens First Nat’l Bank v. Hoyt, 297 N.W.2d 329, 332

(Iowa 1980).   However, we will not apply this rule to a substantive or

procedural issue if the parties did not raise the issue in the district court.

See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (applying this limitation

to substantive or procedural issues but not to evidentiary issues).

      Even though we have been unable to find a criminal case applying

this rule to a motion for new trial when the court denied the motion without

giving reasons for the denial, we do have a civil case applying this rule when

a court denied a motion to compel arbitration without giving its reasons for

the denial. Modern Piping, Inc. v. Blackhawk Automatic Sprinklers, Inc., 581

N.W.2d 616, 620 (Iowa 1998), overruled on other grounds by Wesley Ret.

Servs., Inc. v. Hansen Lind Meyer, Inc., 594 N.W.2d 22, 29 (Iowa 1999). In

Modern Piping, the district court denied a party’s motion to compel

arbitration in a one-line written order that gave no reason for the denial. Id.

After reviewing the record, we determined a proper basis appeared in the

record to affirm the district court’s denial. Id. at 622.

      In the present case, Maxwell requested a new trial under rule

2.24(2)(b)(6). When deciding such a motion, the district court is entitled to

weigh the evidence and consider the credibility of the witnesses. Ellis, 578

N.W.2d at 658. If the court determines the verdict is contrary to the weight

of the evidence and a miscarriage of justice may have occurred, it is within

the court’s discretion to grant a new trial. Id. The weight-of-the-evidence

analysis is much broader than a sufficiency-of-the-evidence analysis in that
                                      11

“it involves questions of credibility and refers to a determination that more

credible evidence supports one side than the other.” State v. Nitcher, 720

N.W.2d 547, 559 (Iowa 2006). Only in the extraordinary case, where the

evidence preponderates heavily against the verdict, should a district court

lessen the jury’s role as the primary trier of fact and invoke its power to

grant a new trial. State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006).

      Maxwell clearly raised the issue of whether the verdict was contrary to

the weight of the evidence by citing rule 2.24(2)(b)(6) in his motion.

Although the State did not file a written resistance to the motion, the issue

of whether the verdict was contrary to the weight of the evidence was the

only issue the court needed to decide to determine whether Maxwell was

entitled to a new trial. In denying Maxwell’s motion, the district court must

have found the jury’s guilty verdict was not contrary to the weight of the

evidence. Because Maxwell’s motion raised the issue in the district court,

we are allowed to review the record to determine whether a proper basis

exists to affirm the district court’s denial of Maxwell’s motion for new trial.

In doing so, we review the trial court’s ruling for an abuse of discretion.

Nitcher, 720 N.W.2d at 559.

      Our review of the record indicates the greater weight of the evidence

supports the jury’s verdict.     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. Webb, 648 N.W.2d 72, 76

(Iowa 2002). Actual possession is not required, and proof of constructive

possession is enough. Id. “[A]ll that is necessary is that the accused

‘maintains control or a right to control’ the contraband.”        Id. (citation

omitted). A person has actual possession of a controlled substance when
                                     12

that substance is found on the person. State v. Carter, 696 N.W.2d 31, 38

(Iowa 2005).    A person has constructive possession of a controlled

substance “ ‘when the person has knowledge of the presence of the

controlled substance and has the authority or right to maintain control of

it.’ ” Id. at 38–39 (citation omitted). Constructive possession is recognized

by inferences. Id. at 39 (citing State v. Reeves, 209 N.W.2d 18, 22 (Iowa

1973)). However, constructive possession cannot rest simply on proximity

to the controlled substance. State v. Cashen, 666 N.W.2d 566, 572 (Iowa

2003).
      Here, Maxwell did not actually possess the drugs. Officer Meskimen

found 2.77 net grams of cocaine base in the vehicle Maxwell was driving.

However, no drugs were found on Maxwell’s person. Additionally, Maxwell

did not own the vehicle in which the officer found the drugs.

      When a person has not been in exclusive possession of the premises

where the drugs were located, several factors are considered when

determining whether the person had constructive possession of the

controlled substance. These factors 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 substance; and (4) any other circumstances

linking the person to the controlled substance. Webb, 648 N.W.2d at 79.

Further, when the premises is a vehicle, the court may also consider these

additional factors: (1) was the contraband in plain view; (2) was it with the

person’s personal effects; (3) was it found on the same side of the car or

immediately next to the person; (4) was the person the owner of the vehicle;

and (5) was there suspicious activity by the person. Carter, 696 N.W.2d at
                                    13

39.   We have stated that all of these factors merely act as a guide to

determine whether the State has established constructive possession. Id.

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 person knew of the presence of the controlled substance and had

control and dominion over it. Id. at 39–40.

      The evidence supporting the verdict that Maxwell constructively

possessed the drugs includes: (1) Maxwell was the only person in the

Oldsmobile from the time officer Meskimen saw Maxwell pull out of the

convenience store until he apprehended him. See Cashen, 666 N.W.2d at

571–73 (finding insufficient evidence to prove constructive possession of a

controlled substance found in the backseat of a vehicle occupied by the

defendant and six other persons, where defendant and three other persons

were in the backseat); (2) the cigarette pack and the protruding plastic

baggie containing the drugs were in plain view of Maxwell; (3) the plastic

baggie containing the drugs was left inside an empty box of Newport

cigarettes, the same brand of cigarettes found on Maxwell’s person. See

Carter, 696 N.W.2d at 40 (finding constructive possession where, amongst

other factors, only the plastic baggie containing the substance, not the

substance itself, was in plain view, and the baggie was not in a location

where one would ordinarily leave it); (4) the drugs were found immediately

next to Maxwell, lodged between his seat and the front-passenger seat; (5)

when Meskimen activated his top lights, Maxwell continued for

approximately one-hundred feet until pulling into the driveway of his

residence; (6) when Meskimen parked his patrol car so it was partially

blocking the driveway, Maxwell did not remain in his vehicle, but instead

exited the vehicle, walked toward his residence, and attempted to go inside.
                                     14

See id. (finding constructive possession where, amongst other factors, the

driver-defendant did not immediately stop when the police officer activated

his lights); and (7) Maxwell was the most recent driver of the vehicle. See

State v. Kemp, 688 N.W.2d 785, 790 (Iowa 2004) (finding constructive

possession where the defendant was the owner and most recent driver of

the vehicle).

      The only witnesses to testify at the trial were the four presented by

the State. All were police officers for the city of Urbandale at the time of

Maxwell’s arrest. Officer Meskimen testified to the facts pertaining to the

stop, search, and arrest of Maxwell. He opined the quantity of drugs found

near Maxwell was consistent with an amount possessed by a person with

intent to sell the drugs. The second witness, sergeant Matt Logsdon, was

not involved in the arrest of Maxwell. He also testified the quantity of drugs

found was consistent with an amount possessed by someone intending to

sell the drugs. The third witness, officer McCarty, was backup to officer

Meskimen at the time of the search. He testified he watched Maxwell while

Meskimen conducted the search. The final witness, detective Terry Depold,

testified as to the chain of custody of the drugs and his dealings with the

DCI criminalistics laboratory regarding the analysis of the drugs.

      Maxwell’s attorney challenged the witnesses’ opinions regarding

whether the amount of drugs Maxwell had in his possession was consistent

with a quantity possessed by someone with intent to deliver. Defense

counsel was successful in his questioning because the jury found Maxwell

guilty of the lesser-included charge of possession. However, there was no

controversy about where the officer found the drugs. The jury made the

determination that Maxwell was in constructive possession of the drugs.
                                     15

The jury’s determination of guilt was not contrary to the weight of the

evidence.

      Accordingly, the district court did not abuse its discretion in

overruling Maxwell’s motion for new trial under rule 2.24(2)(b)(6).

      C. The Inclusion of an Aiding and Abetting Jury Instruction.

Maxwell claims he was denied effective assistance of counsel when his trial

counsel did not object to the aiding and abetting jury instruction. Claims of

ineffective assistance of counsel have their basis in the Sixth Amendment to

the United States Constitution and thus, are reviewed de novo. Nitcher, 720

N.W.2d at 553. Even though these claims are generally preserved for post-

conviction relief, when presented with a sufficient record this court will

address such a claim. Id. In this case, the record is sufficient to permit a

ruling.

      In order to succeed on a claim of ineffective assistance of counsel, a

defendant must prove: (1) counsel failed to perform an essential duty; and

(2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104

S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); accord Nitcher, 720 N.W.2d

at 553. “Unless a defendant makes both showings, it cannot be said that

the conviction or death sentence resulted from a breakdown in the

adversary process that renders the result unreliable.” Strickland, 466 U.S.

at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693.            In other words,

“[i]neffective assistance under Strickland is deficient performance by counsel

resulting in prejudice, with performance being measured against an

‘objective standard of reasonableness,’ ‘under prevailing professional

norms.’ ” Rompilla v. Beard, 545 U.S. 374, 380, 125 S. Ct. 2456, 2462, 162

L. Ed. 2d 360, 371 (2005) (internal citations omitted).
                                       16

      Under the first element, we measure counsel’s performance against

the standard of a reasonably competent practitioner. Ledezma v. State, 626

N.W.2d 134, 142 (Iowa 2001). In doing so, we start with the presumption

that the attorney performed his duties in a competent manner. Id. In

making the determination of whether an attorney failed to perform an

essential duty, this court “avoid[s] second-guessing and hindsight.” Id. We

scrutinize each claim based on the totality of the circumstances. Id.

      Prejudice exists where the claimant proves by “a reasonable

probability that, but for the counsel’s unprofessional errors, the result of

the proceeding would have been different.” Bowman v. State, 710 N.W.2d

200, 203 (Iowa 2006).

      [T]he prejudice prong of the Strickland test “does not mean a
      defendant must establish ‘that counsel’s deficient conduct
      more likely than not altered the outcome in the case.’ A
      defendant need only show that the probability of a different
      result is ‘sufficient to undermine confidence in the outcome.’ ”
Id. at 206 (citations omitted). To determine whether prejudice exists we

“ ‘must consider the totality of the evidence, what factual findings would

have been affected by counsel’s errors, and whether the effect was pervasive

or isolated and trivial.’ ” Id. (citation omitted).
      Maxwell must prove, by a preponderance of the evidence, both that

counsel failed to perform an essential duty and that prejudice resulted.

Ledezma, 626 N.W.2d at 142. However, if the claim lacks the necessary

prejudice, we can decide the case on the prejudice prong of the test without

deciding whether the attorney performed deficiently. Id.

      As the State points out, “[t]he parties agree that there was no

evidence under which Maxwell could be found guilty as an aider and

abetter.” True, the district court should not have given the aiding and

abetting instruction when no evidence of another person’s involvement was
                                     17

presented at the trial. See State v. Mays, 204 N.W.2d 862, 864 (Iowa 1973);

see also State v. Smith, 129 Iowa 709, 717, 106 N.W. 187, 190 (1906)

(finding “the giving of a jury instruction which has no basis in the evidence

is reversible error”). However, even if we assume defense counsel failed to

perform an essential duty by failing to object to the instruction, we are not

convinced Maxwell has established the prejudice prong of Strickland.

      Maxwell argues the aiding and abetting instruction created prejudice

because it misstated his culpability and permitted the jury to speculate

about possible facts not presented at trial.     Maxwell relies on State v.

Jackson, 587 N.W.2d 764, 766 (Iowa 1998) and Mays, 204 N.W.2d at 864,

to support his argument. This reliance is misplaced because both Jackson

and Mays relate to a defendant challenging jury instructions on direct

appeal. See Jackson, 587 N.W.2d at 766 (reviewing the defendant’s direct

appeal of the district court’s giving of a joint criminal conduct jury

instruction); Mays, 204 N.W.2d at 865 (reviewing the defendant’s direct

appeal of the district court’s giving of an aiding and abetting jury

instruction).

      We have made it clear that ineffective-assistance-of-counsel claims

based on failure to preserve error are not to be reviewed on the basis of

whether the claimed error would have required reversal if it had been

preserved at trial. State v. Broughton, 450 N.W.2d 874, 876 (Iowa 1990).

Rather, a defendant must demonstrate a breach of an essential duty and

prejudice. Id. In ineffective-assistance-of-counsel claims “the instruction

complained of [must be] of such a nature that the resulting conviction

violate[s] due process.” State v. Hill, 449 N.W.2d 626, 629 (Iowa 1989).

      When the submission of a superfluous jury instruction does not give

rise to a reasonable probability the outcome of the proceeding would have
                                      18

been different had counsel not erred, in the context of an ineffective-

assistance-of-counsel claim, no prejudice results.      State v. Tejeda, 677

N.W.2d 744, 755 (Iowa 2004). Further, when there is no suggestion the

instruction contradicts another instruction or misstates the law there

cannot be a showing of prejudice for purposes of an ineffective-assistance-

of-counsel claim. Id.

      Under the facts contained in this record, we do not believe the aiding
and abetting instruction misstated Maxwell’s culpability in a material way.

Aiding and abetting occurs when a person actively participates or in some

manner encourages the commission of a crime prior to or at the time of its

commission. State v. Tangie, 616 N.W.2d 564, 574 (Iowa 2000). Knowledge

of the crime is insufficient in and of itself to prove aiding and abetting. Id.

Likewise, presence at the scene of the crime, without more, is not enough to

uphold a finding of guilty by aiding and abetting. Id. Maxwell was the only

person present at the scene of the crime. Although another person owned

the vehicle, the record is devoid of any evidence that would allow the jury to

find Maxwell encouraged anyone to possess the drugs found in the vehicle
or that any of his actions equaled active participation. Under this record,
we doubt this instruction had any effect on the jury’s decision.

      As we stated in the prior division of this opinion there was sufficient

evidence to support the jury’s verdict finding Maxwell guilty of possession of

a controlled substance in violation of section 124.401(5). Thus, there was

no opportunity for him to be found guilty based on anything other than his

own possession of the drugs.

      Given the overwhelming evidence supporting Maxwell’s guilt and the

negligible effect the aiding and abetting jury instruction could have had on

the verdict, we conclude there was no reasonable probability that, but for
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counsel’s failure to object to the instruction, the result of the proceedings

would have been different. See Tejeda, 677 N.W.2d at 755 (finding where

the prosecution presents ample evidence of the defendant’s guilt and the

effect of the superfluous jury instruction is merely speculative, no prejudice

results in an ineffective-assistance-of-counsel analysis).

      Accordingly, Maxwell failed to establish the prejudice prong of the

Strickland test. Therefore, he failed to prove his ineffective-assistance-of-

counsel claim.

      IV. Disposition.

      Having found the district court did not err by imposing two

sentencing enhancements based on the same two prior felony convictions,

the district court correctly decided Maxwell’s motion for new trial, and his

counsel did not provide ineffective assistance when he failed to object to the

aiding and abetting instruction, we affirm Maxwell’s conviction and

sentence.

      AFFIRMED.
