                   IN THE COURT OF APPEALS OF IOWA

                                     No. 16-0122
                                  Filed May 3, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DALE KUZMICKI,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Pocahontas County, Kurt J.

Stoebe, Judge.



      Defendant appeals his conviction for gathering where controlled

substances are used, in violation of Iowa Code section 124.407 (2015), and

possession of methamphetamine (third offense), in violation of section

124.401(5). AFFIRMED.



      Jennifer Bonzer of Johnson and Bonzer, Marshalltown, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.

       Dale Kuzmicki was arrested and charged with (I) gathering where

controlled substances are used, in violation of Iowa Code section 124.407

(2015), (II) possession of methamphetamine (third offense), in violation of section

124.401(5), and (III) possession of marijuana (third offense), in violation of

section 124.401(5).    Kuzmicki waived his right to trial by jury, and the case

proceeded to bench trial. The district court found Kuzmicki guilty on counts I and

II and not guilty on count III. On appeal, Kuzmicki challenges the sufficiency of

the evidence supporting his convictions.       He also contends his trial counsel

provided constitutionally deficient representation in failing to ensure Kuzmicki’s

waiver of his right to trial by jury was knowing and voluntary.

       We first address Kuzmicki’s challenge to the sufficiency of the evidence.

The claim is properly before us; there is no need to preserve error when the

matter is tried to the court. See State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997).

The standard of review is well established:

       Sufficiency of evidence claims are reviewed for correction of errors
       at law. In reviewing challenges to the sufficiency of evidence
       supporting a guilty verdict, courts consider all of the record
       evidence viewed in the light most favorable to the State, including
       all reasonable inferences that may be fairly drawn from the
       evidence. We will uphold a verdict if substantial record evidence
       supports it. We will consider all the evidence presented, not just
       the inculpatory evidence. Evidence is considered substantial if,
       when viewed in the light most favorable to the State, it can
       convince a rational [trier of fact] that the defendant is guilty beyond
       a reasonable doubt. Inherent in our standard of review of . . .
       verdicts in criminal cases is the recognition that the [trier of fact] is
       free to reject certain evidence, and credit other evidence.

State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014).
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      The record reflects Pocahontas Police Officer Travis Lampe was

dispatched to the residence of Dale and Tracy Kuzmicki to respond to a dispute

about a dog. There were several people outside the residence when Lampe

arrived, including Kari Sweeney, her daughter, and James Keck, all of whom

were seated in a van parked at the residence. Lampe determined Sweeney was

the owner of the van, and he checked her license. The check revealed Sweeney

had an outstanding warrant. Lampe told Sweeney he was going to take her into

custody. Lampe agreed Keck could take the child. Lampe also agreed Keck

could go inside the home to use the restroom before leaving with the child.

      By this time, Kuzmicki and his wife Tracy had exited the home to inquire

why Lampe was there.       Lampe explained he was responding to a dispute

regarding a dog. The dispute involved Mike and Elizabeth Nelson. Mike had

contacted the police for assistance in the return of his dog from Elizabeth.

Elizabeth and the dog were both at the Kuzmicki residence when Lampe arrived.

Kuzmicki offered to go inside the house and retrieve the dog. When Kuzmicki

went into the house, Keck asked Kuzmicki to help him escape through a back

window in the house. Kuzmicki refused, stating he did not want the police to

enter the house because he had “drugs and paraphernalia in the house.” Keck

then went and hid in an upstairs closet.

      While Kuzmicki and Keck were in the house, Lampe and Tracy remained

outside the house. Lampe determined from Tracy that either Keck had given him

false identity information or Lampe had misheard the information. Regardless,

after learning Keck’s real name and conducting a check, Lampe determined

there was an active arrest warrant for Keck. Lampe radioed for assistance. He
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asked Tracy to go inside the residence and tell Keck to come out. Tracy went

inside. When she exited the residence, she told Lampe that Keck had left the

residence. Lampe suspected this was false information because he had been

observing the doors of the residence and had not observed Keck leave. Lampe

told Tracy he was going to go inside and get Keck after the other officers arrived

at the scene. Shortly thereafter, Keck exited the residence. Lampe placed Keck

under arrest and transported him to the Pocahontas County Jail.

      Lampe interviewed Keck at the jail.                Keck stated he had made

arrangements to purchase drugs from Kuzmicki and was at the residence to buy

methamphetamine.      Keck told Lampe there were drugs and paraphernalia

throughout the residence.

      Based on Keck’s information, Lampe successfully applied for a search

warrant of the residence. He and other officers executed the search warrant at

the home at approximately 10:30 p.m. the same day. There were five unrelated

adults at the residence at the time the warrant was executed.                The officers

discovered drugs and drug paraphernalia throughout the house. For example,

they discovered in the kitchen: a light bulb modified for use as a pipe to smoke

methamphetamine; syringes inside a microwave; a digital scale; a soda bottle

fashioned into a bong that contained a blue liquid that tested positive for

methamphetamine; and a bottle cap with methamphetamine residue.                      In the

defendant’s   bedroom,      the   officers       discovered   the   following:   a   glass

methamphetamine pipe; plastic bags containing methamphetamine residue;

equipment and materials used in the manufacture of methamphetamine; a recipe

card detailing the process of manufacturing methamphetamine; a razor; tinfoil;
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plastic bags; and a metal pipe containing marijuana.         There was another

bedroom in the home where officers discovered the following: spoons and tubes

with residue on them; and a camera bag containing methamphetamine, syringes,

and tubes. The officers arrested Kuzmicki and the others at the scene.

      With respect to count I, the code provides, “It is unlawful for any person to

sponsor, promote, or aid, or assist in the sponsoring or promoting of a meeting,

gathering, or assemblage with the knowledge or intent that a controlled

substance be there distributed, used or possessed, in violation of [chapter 124].”

Iowa Code § 124.407.       Contrary to Kuzmicki’s contention, the State is not

required to prove recent use.     See State v. Dukes, No. 09-0062, 2009 WL

3379088, at *2 (Iowa Ct. App. Oct. 21, 2009) (explaining the state need only

prove “knowledge or intent that a controlled substance be there distributed, used,

or possessed”).

      We conclude there was substantial evidence supporting Kuzmicki’s

conviction for gathering where controlled substances are used.        There were

many unrelated adults at the residence when Lampe first arrived at the residence

and when the officers returned at night to execute the warrant. There were tents

set up in the yard.       Keck drove to the Kuzmickis’ home to purchase

methamphetamine. He or his girlfriend called beforehand to confirm Kuzmicki

had possession of and was in fact selling methamphetamine. Kuzmicki admitted

to Keck he had drugs and paraphernalia in the home, which was confirmed when

the officers executed the warrant. There was a substantial amount of drugs, drug

residue, and drug paraphernalia throughout the home. When the evidence is

viewed in the light most favorable to the verdict, each element was supported by
                                         6

substantial evidence. See, e.g., State v. Carter, 582 N.W.2d 164, 167 (Iowa

1998); State v. Cartee, 577 N.W.2d 649, 653 (Iowa 1998).

      With respect to count II, “[u]nlawful 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). “Proof of opportunity of access to the place where contraband is found

will not, without more, support a finding of unlawful possession.” Id. The State

may show either “actual possession” or “constructive possession.” See Thomas,

847 N.W.2d at 442. “Constructive possession exists when the evidence shows

the defendant ‘has knowledge of the presence of the controlled substance and

has the authority or right to maintain control of it.’” State v. Reed, 875 N.W.2d

693, 705 (Iowa 2016) (citation omitted).       Constructive possession may be

inferred when drugs are found on property in the defendant’s exclusive

possession. Id. When a person does not have exclusive possession of the

residence, additional proof is necessary. Id. Factors to consider in determining

whether the defendant possessed contraband discovered in a jointly occupied

residence include: incriminating statements made by a person; incriminating

actions of the person upon the police’s discovery of a controlled substance

among or near the person’s personal belongings; the person’s fingerprints on the

packages containing the controlled substances; and any other circumstances

linking the person to the controlled substance. Id. at 706.

      There    was    substantial   evidence   Kuzmicki       unlawfully   possessed

methamphetamine.       Kuzmicki and his wife rented the home.              One could
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reasonably infer Kuzmicki had knowledge of the methamphetamine present in

the home because it was easily found or easily observable. Keck testified he

went to the home to purchase methamphetamine from Kuzmicki.            Kuzmicki

confirmed, in the phone call, that he had possession of methamphetamine and

was selling it. Kuzmicki also acknowledged his possession of the drugs when

Keck asked for assistance in escaping through the back window. Kuzmicki’s wife

told the officers executing the warrant that the methamphetamine belonged to

Kuzmicki.

      We next address Kuzmicki’s claim his counsel was ineffective. Ineffective-

assistance-of-counsel claims are an exception to the error preservation

requirement. State v. Stallings, 658 N.W.2d 106, 108 (Iowa 2003), overruled on

other grounds by State v. Feregrino, 756 N.W.2d 700, 707 (Iowa 2008).

Although such claims are generally preserved for postconviction-relief actions,

we will address them where the record is adequate to permit a ruling. State v.

Wills, 696 N.W.2d 20, 22 (Iowa 2005).

      We review claims of ineffective assistance of counsel de novo. See State

v. Liddell, 672 N.W.2d 805, 809 (Iowa 2003). To establish a claim, a defendant

must show counsel failed to perform an essential duty and prejudice resulted.

See State v. Keller, 760 N.W.2d 451, 452 (Iowa 2009). With respect to the first

element, “counsel’s performance is measured against the standard of a

reasonably competent practitioner, with the presumption that the attorney

performed his duties in a competent manner.” Id. On the second element, the

defendant must show “but for counsel’s error, there is a reasonable probability
                                           8

that the results of the trial would have been different.” Id. Failure to prove either

element defeats the entire claim. See Liddell, 672 N.W.2d at 809.

       A jury trial is required unless a “defendant voluntarily and intelligently

waives a jury trial in writing and on the record.” Iowa R. Crim. P. 2.17(1). To

ensure the waiver is knowing, voluntary, and intelligent, the court must personally

address the defendant.      See Liddell, 672 N.W.2d at 813.          “[A] court should

ascertain whether the defendant understands the difference between jury and

non-jury trials, through an in-court colloquy.” Id. It has been suggested the court

inform the defendant (1) twelve members of the community compose a jury, (2)

the defendant may take part in jury selection, (3) jury verdicts must be

unanimous, (4) the court alone decides guilt or innocence if the defendant waives

a jury trial, and (5) neither the court nor the prosecution will reward the defendant

for waiving a jury trial. Id. at 813–14. The five subjects of inquiry are neither

“‘black-letter rules’ nor a ‘checklist’ by which all jury-trial waivers must be strictly

judged.” Id. at 814. “Substantial compliance is acceptable.” Id. The “ultimate

inquiry” is “whether the defendant’s waiver is knowing, voluntary, and intelligent.”

Id.

       Kuzmicki argues the court made no efforts to ascertain whether he

believed he would be rewarded in some way for waiving a jury trial. Kuzmicki

contends he was prejudiced as a result of his lawyer’s failure to compel such an

inquiry because the record shows Kuzmicki thought it would be advantageous to

waive a jury trial (i.e., he would be rewarded for doing so). We conclude the

record is inadequate to resolve the claim, and we preserve the claim for

postconviction-relief proceedings.       See Feregrino, 756 N.W.2d at 707–08
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(explaining a violation of required colloquy (jury trial waiver) does not necessarily

prove the defendant failed to actually understand the issue).

       For the foregoing reasons, we affirm the defendant’s convictions.

       AFFIRMED.
