                   IN THE COURT OF APPEALS OF IOWA

                                     No. 16-0884
                                  Filed July 6, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LARRY PERRY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.



      The     defendant    appeals      his   convictions   for   possession   of

methamphetamine, third offense, and driving while barred as a habitual offender.

AFFIRMED.



      Andrea M. Flanagan of Sporer & Flanagan, P.L.L.C., Des Moines, for

appellant.

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

Attorney General, for appellee.



      Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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MCDONALD, Judge.

      Following trial by jury, Larry Perry was convicted of possession of

methamphetamine, third offense, and driving while barred as a habitual offender.

In this direct appeal, Perry challenges the sufficiency of the evidence supporting

the conviction for possession of methamphetamine. Perry also challenges the

performance of his trial counsel, contending his counsel provided constitutionally

deficient representation in failing to move to sever the counts of the trial

information.

      We first address the challenge to the sufficiency of the evidence. Our

review is for the correction of legal error. See State v. Webb, 648 N.W.2d 72, 75

(Iowa 2002).    We will uphold a verdict where the verdict is supported by

substantial evidence. Id. Evidence is substantial when the quantum and quality

of evidence is sufficient to “convince a rational fact finder that the defendant is

guilty beyond a reasonable doubt.” Id. at 76 (citing State v. Heard, 636 N.W.2d

227, 229 (Iowa 2001)). In conducting our review, “we view the evidence in the

light most favorable to the State, including legitimate inferences and

presumptions which may fairly and reasonably be deduced from the evidence in

the record.” State v. Leckington, 713 N.W.2d 208, 213 (Iowa 2006) (citing State

v. Casady, 597, N.W.2d 801, 804 (Iowa 1999)).

      In the late of night, Des Moines Police Officer Tori Aletheia observed a

moving vehicle with an expired license plate. Officer Aletheia initiated a traffic

stop. After the vehicle pulled over, Officer Aletheia exited her vehicle and walked

toward the suspect vehicle. As Officer Aletheia approached the suspect vehicle,

Perry opened the driver’s door and exited the vehicle. Dashcam video showed
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Perry was holding something in his right hand. At the same time, two occupants

of the vehicle exited the vehicle from the front and rear passenger seats. Officer

Aletheia instructed all of the occupants to return to the vehicle and close the

doors. Perry began walking away from the officer. As Perry took his first few

steps, he made a throwing motion with his right hand towards a bush near the

sidewalk. He then started running.

      Officer Aletheia radioed dispatch and pursued Perry on foot. While Officer

Aletheia pursued Perry, the passengers left the scene.      After a short chase,

Officer Aletheia apprehended Perry. As Officer Aletheia led Perry back to her

squad car, backup arrived. Officer Adam Herman searched the area. Officer

Herman found a plastic bag containing a crystalline substance under a bush near

the sidewalk along Perry’s footpath. The bag was in relatively new condition and

appeared to be freshly placed underneath the bush.        Another officer located

Perry’s car keys somewhere along Perry’s footpath. Subsequent testing of the

white substance in the bag determined it was methamphetamine.

      “Unlawful possession of a controlled substance requires proof that the

defendant: (1) exercised dominion and control over the contraband, (2) had

knowledge of its presence, and (3) had knowledge that the material was a

controlled substance.” State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003) (citing

State v. Reeves, 209 N.W.2d 18, 21 (Iowa 1973)). “In the realm of controlled

substance prosecutions, possession can be either actual or constructive.” State

v. Cashen, 666 N.W.2d 566, 569 (Iowa 2003) (citing State v. Maghee, 573

N.W.2d 1, 10 (Iowa 1997)). “[T]here is no hard and fast distinction between

actual possession and constructive possession; where the former ends and the
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latter begins depends on the facts and circumstances of each case and does not

necessarily turn on the question of whether the contraband was found on the

defendant’s person.” State v. Eubanks, No. 13-0602, 2014 WL 2346793, at *3

(Iowa Ct. App. May 29, 2014). An individual can have “actual possession when

. . . substantial evidence supports a finding it was on his or her person ‘at one

time.’” State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014) (quoting State v.

Vance, 790 N.W.2d 775, 784 (Iowa 2010)).

       When the evidence is viewed in the light most favorable to the jury’s

verdict, the verdict is supported by substantial evidence. The dashcam footage

showed Thomas exited the vehicle with a shiny object in his right hand. Perry

argues the shiny object was his car keys. Both Officers Aletheia and Herman

testified they reviewed the dashcam video and concluded it showed Perry

holding a plastic bag consistent with the plastic bag found under the bush. The

resolution of this disputed fact issue was for the jury. Perry made a throwing

motion with his right hand as he began to run. Perry’s throwing motion also

could be most easily explained as “an effort to get the drugs off his person.” See

id. at 444. As in Thomas, the drugs were discovered near Perry’s location before

be he began to run. See id. (noting the “drugs were found in close proximity to

the defendant”).   Throwing the bag and fleeing the scene evidence Perry’s

“knowledge he was engaged in unlawful conduct—the possession of controlled

substances.” See Eubanks, 2014 WL 2346793, at *4. The dashcam footage

showed no other person entered the area where the drugs were discovered,

including the two passengers in Perry’s vehicle, who left in the opposite direction.

The plastic bag was in near-pristine condition, from which the jury could have
                                         5


inferred it was only recently left on the ground. Officer Hochstetler testified there

was no history of complaints regarding methamphetamine being left out in the

community, suggesting the drugs were not placed there by a third party before

the events unfolded.    “These are all facts from which it can be inferred the

contraband was in the actual physical possession of [Perry] immediately prior to

his arrest rather than coming from some other source.” Id. The jury’s verdict

was supported by substantial evidence.

       We next resolve Perry’s challenge to his counsel’s performance. Perry

argues his counsel was ineffective in failing to move to sever the possession of

methamphetamine charge and the driving while barred charge. As a general

rule, “[i]neffective-assistance-of-counsel claims are typically addressed in

postconviction-relief proceedings where the record is more fully developed.” Id.

at *5. However, we may resolve an ineffective-assistance-of-counsel claim on

direct appeal where the record is sufficient to do so. State v. Maxwell, 743

N.W.2d 185, 195 (Iowa 2008). Our review is de novo. Id.

       To establish his claim of ineffective assistance of counsel, Perry “must

prove: (1) counsel failed to perform an essential duty; and (2) prejudice resulted.”

Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To prove the first

element, Perry must show counsel’s performance fell below the standard of a

reasonably competent attorney. See Ledezma v. State, 626 N.W.2d 134, 142

(Iowa 2001). To prove the second element, Perry must show “that there is a

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

the proceeding would have been different.” Id. at 143 (quoting Strickland, 466

U.S. 693). “[B]oth elements do not always need to be addressed. If the claim
                                         6


lacks prejudice, it can be decided on that ground alone without deciding whether

the attorney performed deficiently.” Id. at 142 (citing Strickland, 466 U.S. at 697;

State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995); State v. Bumpus, 459

N.W.2d 619, 627 (Iowa 1990); Taylor v. State, 352 N.W.2d 683, 685 (Iowa

1984)).

       Perry’s counsel was not ineffective.     Iowa Rule of Criminal Procedure

2.6(1) governs the issue. It states:

              Two or more indictable public offenses which arise from the
       same transaction or occurrence or from two or more transactions or
       occurrences constituting parts of a common scheme or plan, when
       alleged and prosecuted contemporaneously, shall be alleged and
       prosecuted as separate counts in a single complaint, information or
       indictment, unless, for good cause shown, the trial court in its
       discretion determines otherwise.

Iowa R. Crim. P. 2.6(1). Perry contends a single trial was improper because

there was no “common plan or scheme” here, but he ignores the disjunctive

language in the rule that requires a single prosecution where the public offenses

arise out of “the same transaction or occurrence.” Id. To determine if two crimes

are from the same transaction or occurrence we review the time, place, and

circumstances of the crimes. State v. Bair, 362 N.W.2d 509, 512 (Iowa 1985). In

this case, the charges arose from the same transaction or occurrence originating

with the traffic stop. Counsel had no duty to make a motion to sever. See State

v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998) (stating “[t]rial counsel is not

incompetent in failing to pursue a meritless issue”).

       Perry also has not established prejudice. To the contrary, Perry’s defense

was predicated on trying the two offenses together. Perry’s counsel defended

against the possession charge by arguing Perry fled the scene not because he
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had methamphetamine and was trying to dispose of it but because he had no

driver’s license and was trying to avoid arrest for that. Perry actually benefited

from trying the two charges together because he justified his flight while being

able to deny consciousness of guilt for possession of methamphetamine. Perry

nonetheless contends he was prejudiced with respect to the possession charge

because the jury heard evidence regarding Perry’s driving record and could

conclude Perry had a propensity toward criminal behavior. This argument fails

because the supreme court has concluded the propensity argument is

“unequivocally” distinct from our “law dealing with joinder of offenses.” State v.

Romer, 832 N.W.2d 169, 183 (Iowa 2013).            Finally, we note the jury was

instructed Perry’s innocence or guilt must be determined separately on each

count, which minimizes the risk of unfair prejudice. We presume the jury follows

the district court’s instructions. Lehigh Clay Prods., Ltd. v. Iowa Dep’t of Transp.,

512 N.W.2d 541, 546 (Iowa 1994).        Under the circumstances, Perry has not

established Strickland prejudice.

       Perry requests we preserve certain claims for postconviction-relief

proceedings. He notes trial counsel failed to strike a juror who worked with the

presiding judge and believes this led to undue influence. He also notes trial

counsel made purportedly disparaging remarks regarding the neighborhood in

which Perry was arrested, which may have alienated jurors from that

neighborhood. We preserve these claims. See State v. Johnson, 784 N.W.2d

192, 198 (Iowa 2010).

       For the above-stated reasons, we affirm the defendant’s convictions.

       AFFIRMED.
