                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0175
                               Filed March 7, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARC ASHLEY MCCANN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Timothy J. Finn,

Judge.



      A defendant appeals his conviction for possession with intent to deliver

raising evidentiary issues and claims of ineffective assistance of counsel.

AFFIRMED.



      Christopher A. Clausen of Clausen Law Office, Ames, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant Attorney

General, for appellee.



      Considered by Doyle, P.J., McDonald, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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SCOTT, Senior Judge.

       Marc McCann appeals his conviction for possession of a controlled

substance—methamphetamine—with intent to deliver, as a second or subsequent

offender. See Iowa Code §§ 124.401(1)(c)(6), .411, .413 (2016). He raises a

number of claims on appeal including: (1) the court erred in overruling his objection

to testimony he believed constituted speculation; (2) the court erred in permitting

an officer to comment on his refusal to answer questions during his interrogation;

(3) the court erred in permitting the trial to go forward in his absence; and (4) the

evidence was insufficient to support his conviction. Because we find the evidence

was sufficient and no error at law occurred, we affirm McCann’s conviction.

I. Background Facts and Proceedings.

       While attempting to effectuate civil service of process, Story City Police

Officer Dustin Demarest smelled marijuana emanating from a trailer. When the

occupant of the trailer, Kyle Borton, opened the door, the smell intensified. Officer

Demarest later obtained a search warrant and returned to the trailer the following

day. At that time, Borton and his girlfriend were present in the trailer, along with

McCann, who owned the trailer, and McCann’s girlfriend. When police entered the

trailer, Borton’s girlfriend fled from the living room to the bathroom. McCann was

located in the bathroom standing over the toilet, and his girlfriend was standing in

the bathroom by the vanity.

       During the search of the trailer, officers located drug paraphernalia in the

bedroom along with McCann’s belongings.          Shortly after the search began,

McCann asked to use the toilet. Officers first searched the bathroom and located
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baggies containing methamphetamine in the toilet bowl. McCann was charged

with possession with intent to deliver.

         The case proceeded to a jury trial in December 2016, and the jury returned

a guilty verdict. After denying the posttrial motions, the district court sentenced

McCann to ten years in prison with a one-third mandatory minimum term. The

court, however, decided not to enhance the sentence under section 124.411.

McCann appeals.

II. Scope and Standard of Review.

         We review the district court’s evidentiary rulings regarding the admission of

opinion testimony for an abuse of discretion. State v. Kinsel, 545 N.W.2d 885, 889

(Iowa Ct. App. 1996) (“[A] manifest abuse of discretion must be found before we

will interfere with a trial court’s ruling on the admissibility of opinion testimony.”).

We review de novo McCann’s claims that implicate his constitutional rights to the

effective assistance of counsel and the right to be present for trial. See Nguyen v.

State, 707 N.W.2d 317, 323 (Iowa 2005) (noting standard of review for claims of

ineffective assistance of counsel); State v. Hendren, 311 N.W.2d 61, 62 (Iowa

1981) (noting the right to be present for trial is a constitutional right and we review

de novo the facts to determine whether the defendant’s absence from trial is

voluntary). Finally, we review for correction of errors at law McCann’s challenge

to the sufficiency of the evidence. See State v. Ortiz, 905 N.W.2d 174, 179 (Iowa

2017).

III. Speculation Objection.

         McCann first claims the court should not have permitted Officer Demarest

to testify regarding McCann’s knowledge of the other drugs found in the trailer. He
                                          4


asserts such information was outside Officer Demarest’s knowledge because the

officer had no way to look inside his mind. He asserts his attorney’s “speculation”

objection should have been sustained.

      During the redirect examination of Officer Demarest, the prosecutor asked:

              Q. You stated just previously that the main reason that you felt
      the defendant was in possession of the drugs is because of his
      proximity to the toilet. Anything else that led you to believe that these
      were the defendant’s drugs? A. Well, all of the paraphernalia and all
      of the other stuff that I found in the bedroom. All of the spent needles
      and spoons and cotton swabs.
              Q. You said that the others in your opinion knew about the
      drugs? A. (No audible response was given by the witness.)
              Q. Is that in your opinion? A. Yes, that’s my opinion.
              Q. So is it fair to say that if there were other drugs found, that
      the defendant would have known about those in your opinion?
              [Defense Counsel]: Objection. Calls for speculation.
              The Court: Overruled. You may answer the question.
              [Officer Demarest]: Would you ask it again?
              [The Prosecutor]: Madam Reporter, would you read that
      back?
              (At this time the court reporter read back the following
      question: “So is it fair to say that if there were other drugs found, that
      the defendant would have known about those in your opinion?”)
              A. Yes.

      On appeal, the State asserts the question and answer were proper under

Iowa Rule of Evidence 5.701, which provides:

             If a witness is not testifying as an expert, testimony in the form
      of an opinion is limited to one that is:
             a. Rationally based on the witness’s perception;
             b. Helpful to clearly understanding the witness’s testimony or
      to determining a fact in issue; and
             c. Not based on scientific, technical, or other specialized
      knowledge within the scope of rule 5.702.

      Here, the question addressed Officer Demarest’s perception of the location

of the drugs and paraphernalia within the trailer and whether those objects were

readily observable by McCann. See Kinsel, 545 N.W.2d at 889 (noting “[t]he
                                         5


opinions were largely fact-based, and focused on the ability to observe” and thus

properly admitted). We thus conclude rule 5.701 applies and the court did not

manifestly abuse its discretion in admitting this testimony over defense counsel’s

objection.

IV. Comment on Silence.

       Next, McCann asserts another officer, Officer Emory Ochoa, was permitted

to comment improperly on his refusal to answer questions upon his arrest. See

State v. Metz, 636 N.W.2d 94, 97 (Iowa 2001) (analyzing Doyle v. Ohio, 426 U.S.

610 (1976) to hold “the Fifth Amendment guaranty against self-incrimination

prohibits impeachment on the basis of a criminal defendant’s silence after receipt

of Miranda warnings”).

       During Officer Ochoa’s direct examination, the prosecutor asked:

       Q. Before all of that, did you have any other conversations with the
       defendant? A. Yes. I attempted to interview him.
               Q. Did you ask him about the cash? A. Yes. He was read the
       Miranda warnings. After that, I attempted to question him about the
       methamphetamine that was located in his trailer. He said he didn’t
       know what I was talking about and didn’t want to talk about it. At that
       point I didn’t ask him any more questions about the drugs. Later
       when I realized the money had been located in the trailer, I asked
       him about the money, to which he told me that he was just holding
       on to it for his girlfriend . . . .

McCann acknowledges no objection was made to the officer’s answer, and thus,

the issue is not preserved for appeal. See Lamasters v. State, 821 N.W.2d 856,

862 (Iowa 2012) (“It is a fundamental doctrine of appellate review that issues must

ordinarily be both raised and decided by the district court before we will decide

them on appeal.” (citation omitted)). However, he asks that we consider this issue

through the lens of a claim of ineffective assistance of counsel. See State v.
                                         6

Ondayog, 722 N.W.2d 778, 784 (Iowa 2006) (“Ineffective-assistance-of-counsel

claims are not bound by traditional error-preservation rules.”). To prove a claim of

ineffective assistance of counsel, McCann must prove by a preponderance of the

evidence counsel breached an essential duty in failing to object to Officer Ochoa’s

answer and counsel’s failure resulted in prejudice that denied him a fair trial. See

State v. Halverson, 857 N.W.2d 632, 635 (Iowa 2015).

       Assuming, without deciding, counsel should have objected to the

unsolicited answer by Officer Ochoa regarding McCann’s refusal to answer

questions about the drugs found, we conclude McCann cannot demonstrate he

was prejudiced by counsel’s failure. See State v. Ambrose, 861 N.W.2d 550, 556

(Iowa 2015) (noting a defendant must prove both elements of an ineffective-

assistance claim to prevail and the claim can be resolved under either prong). To

show prejudice, McCann must demonstrate “but for counsel’s unprofessional

errors, the result of the proceeding would have been different.” Halverson, 857

N.W.2d at 639 (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). Even

assuming the court would have stricken the officer’s answer and told the jury to

disregard the testimony upon counsel’s timely objection, our confidence in the

outcome is not undermined by the admission of Officer Ochoa’s testimony. See

State v. Graves, 668 N.W.2d 860, 882 (Iowa 2003) (noting a defendant needs to

show “the probability of a different result is ‘sufficient to undermine confidence in

the outcome’” (quoting Strickland, 466 U.S. at 694)). Because McCann cannot

prove the result of his trial would have been different had this testimony not been

admitted, we conclude McCann failed to prove his ineffective-assistance claim.
                                         7


V. Defendant’s Absence.

      McCann also challenges the court’s decision to proceed with testimony in

his absence on the second day of trial. The State asserts McCann’s claim was not

preserved.   When McCann did not appear from the second day of trial, the

following discussion occurred between the court, the prosecutor, and defense

counsel:

              The Court: Okay. The major [hiccup] in the trial is the fact that
      the defendant has failed to appear. It is now about 9:23 and the
      defense attorney has tried to contact various people by phone and
      has no record about him. And, [defense counsel], what I’m looking
      at is a rule that requires essentially the voluntary absence of the
      defendant once the trial has been commenced; and if you want to
      make any record on that?
              [Defense Counsel]: Thank you, Your Honor. May it please the
      Court and Counsel. Your Honor, I called the halls three times up
      here in District Court and three times on the first floor and Mr. Marc
      McCann is not here.
              The Court: Okay. Thank you.
              [Defense Counsel]: Your Honor, I don’t know why he’s not
      here. I was at my office this morning. If he left a message on my
      machine, I didn’t listen to any of them because I was concentrating
      on preparing for trial today. But I told Mr. McCann to be here
      tomorrow—or today at 8:45, and I was here at 8:45; and I’m still here,
      I think, and Mr. McCann is not. I have no reason why. No one, when
      I called about five minutes ago, was at my office yet. My secretary
      comes in between 9:00 and 9:30 depending on kids, mail, whatever.
      So I have no idea if he has called in since then. And I will call again
      before the jury is brought in. Well, whenever you give me leave, I
      guess; and we’ll just go from there. But I agree reluctantly the rules
      appear to allow the continuation of the trial without the jury—without
      the defendant being present.
              The Court: All right. Thank you. [Prosecutor], any record you
      want to make?
              [Prosecutor]: Just that the State would request that we
      continue on with the trial at this time given the scheduling difficulties
      with our next witness.
              The Court: All right. Very well. Okay. I think the rule is clear
      that what this amounts to is a voluntary absence. Defendant was
      here yesterday. I told counsel—I believe I told them either on the
      record or separately—that I would see them at nine o’clock in the
                                             8


       morning. We have heard nothing from the defendant. So we will
       proceed with the trial with the defendant not being present.

       More than an hour later, after the State had completed its case-in-chief,

defense counsel made a motion to continue or, in the alternative, a motion for a

mistrial.

               [Defense Counsel]: Yes, Your Honor. I would move either for
       a motion to continue or a mistrial. The defendant is not present. That
       much is obvious. I think there is a question of whether or not it is
       voluntary. I’ve had no contact with the defendant. He has not left a
       message on my answering machine or with my secretary who I trust
       implicitly. The number I have for him does not work. But I don’t—he
       was feeling fairly confident about this hearing as I was. And I don’t
       know that he is involuntarily or is voluntarily absent. Without—you
       know, to determine the facts and circumstance this could be
       involuntary. And so I would ask either a motion to continue to
       determine the status of the defendant or for a mistrial since he cannot
       be here, not knowing if it’s involuntary or not to present evidence on
       his own behalf. So I’m going to ask for one of those two in the
       alternative.
               The Court: Thank you. Any response by the State?
               [Prosecutor]: Thank you, Your Honor. The defense and I think
       the court in this case has relied heavily on the [Iowa] Rule of Criminal
       Procedure 2.27(2) which talks about continuing the case where the
       defendant is not personally present after he had already appeared
       for the initial part of the trial. And in looking at that rule, it does require
       that his absence be involuntary—or I’m sorry—voluntary; and there’s
       no evidence that we have today that suggests it wasn’t voluntary or
       involuntary. However, the remedy is not a mistrial. The remedy
       would be to recess until such time as that could be ascertained and
       then we would reconvene with the same jury, same evidence, and
       have the jury deliberate at that time if there’s any evidence presented
       by the defendant. For those reasons we ask that the mistrial motion
       be denied. Furthermore, we believe that based on the rule, the case
       can proceed to conclusion without the presence of the defendant.
       Nothing precludes his witnesses from showing up today even if he
       can’t; and given that there are other people that he’s been in contact
       with that should have come to testify, not a single one of them has
       contacted the court or the defense to say that they are not coming or
       cannot come or why they aren’t here. I think it’s fair to presume that
       it’s voluntary at this point.
               The Court: Well, I’m going to overrule the two motions. Based
       on the evidence presented here, the defendant was here yesterday.
       At the close of evidence he was informed that the trial would
                                            9


       commence at nine o’clock. He was informed by his attorney to be
       here at quarter to nine o’clock and he has failed to do so. I’ve had
       the clerk—or the court attendant call the halls. She’s called the halls
       both upstairs and downstairs. The defendant has not been located.
       And for all those reasons, I think that the state of the record is such
       that I will not grant either a continuance or the mistrial at this time.

       After reading a stipulation to the jury, the State rested and defense counsel

indicated he had no further evidence to offer. The jury was dismissed for lunch,

and upon the jury’s return, McCann appeared at trial.             The court addressed

McCann:

       Mr. McCann, you failed to appear at the commencement of the
       second day of trial. The court elected with the consent of counsel—
       there is a rule that says if you fail to appear after commencement of
       trial, we proceed without you. We did do that and you’re aware of
       that?
               McCann: Yes, I am.

No further record was made as to the reason for his absence from the morning

session. The court did permit the defense to reopen the record to admit testimony

from two witnesses, who, like the defendant, were absent during the morning

session.

       Bypassing any error-preservation concerns due to defense counsel’s initial

agreement to proceed with the trial in McCann’s absence,1 we conclude the court

properly overruled the motion for a continuance and motion for mistrial. The right

to be present at trial can be waived by voluntary absence. Hendren, 311 N.W.2d

at 62. “[F]or the absence to be deemed voluntary, the defendant ‘must be aware




1
 See State v. Foster, 318 N.W.2d 176, 178 (Iowa 1982) (“We have held, however, that if
a defendant’s presence is required at a particular stage of the proceedings, that right may
not be waived by defense counsel.”); see also State v. Taylor, 596 N.W.2d 55, 56 (Iowa
1999) (choosing to pass over “serious preservation-of-error problems” and address the
merits of the claim).
                                         10


of the processes taking place, of his right and of his obligation to be present, and

he must have no sound reason for remaining away.’” Id. (quoting Cureton v. United

States, 396 F.2d 671, 676 (D.C. Cir. 1968)). The record here is clear that McCann

was present the first day of trial and knew of his obligation to return for the second

day no later than 9:00 a.m. He did not contact his attorney or the court to explain

his absence. Even when he returned after lunch on the second day, no explanation

was offered on the record as to why we was absent.

        Because he offered no sound reason for being away from trial the second

morning, we conclude he was voluntarily absent.          When faced with such a

situation, the district court has discretion to proceed with trial in the defendant’s

absence, see id., and we find no abuse of discretion in the district court doing so

here.

VI. Sufficiency of the Evidence.

        Finally, McCann asserts the evidence was insufficient to support his

conviction for possession with intent to deliver. A jury verdict will be upheld if

substantial evidence supports it. State v. Tipton, 897 N.W.2d 653, 692 (Iowa

2017). “Evidence is substantial when a rational trier of fact would be convinced

the defendant is guilty beyond a reasonable doubt.” Id. We consider all the

evidence, but the evidence is viewed in the light most favorable to the State,

“including legitimate inferences and presumptions that may fairly and reasonably

be deduced from the record evidence.” Id. (quoting State v. Williams, 695 N.W.2d

23, 27 (Iowa 2005)). “Direct and circumstantial evidence are equally probative.”

State v. Huser, 894 N.W.2d 472, 491 (Iowa 2017).
                                          11


         It is unclear in his appellate brief what elements of the crime McCann

asserts are unsupported by the record. The jurors were instructed to find McCann

guilty of possession with intent to deliver they had to find:

                 1. On or about the 5th day of February, 2016, the defendant
         possessed methamphetamine.
                 2. The defendant knew that the substance he possessed was
         methamphetamine.
                 3. The defendant possessed the methamphetamine with the
         intent to deliver the methamphetamine.

The evidence at trial established McCann owned the trailer and was standing in

the bathroom over the toilet where baggies of methamphetamine were located.

Within a few minutes of being ordered out of the bathroom but before the officers

discovered the methamphetamine, McCann asked to return to the bathroom. It

can reasonably be inferred that McCann knew the methamphetamine was there

and he was seeking to return to the bathroom to conceal or dispose of the

methamphetamine. Also found in the trailer were syringes, drug paraphernalia,

small plastic bags, small digital scales, and currency in $20.00 denominations.

Testimony during trial established some of those items were indicative of a person

selling methamphetamine or other illegal drugs.

         McCann offered testimony of his girlfriend and girlfriend’s mother that he

had moved out of the trailer in the weeks before the search, but officers located

his clothes and identification in the bedroom, and when the officers entered the

trailer, he was standing over the toilet where the bags of methamphetamine were

found.     We conclude there was substantial evidence to support the jury’s

conclusion that McCann possessed methamphetamine, he knew it was

methamphetamine, and he possessed it with the intent to deliver.
                                          12


VII. Conclusion.

       We conclude the court did not abuse its discretion in admitting layperson

opinion testimony, and McCann cannot prove he suffered prejudiced due to his

counsel’s failure to object to testimony McCann claims commented on his right to

remain silent. In addition, the facts established McCann voluntarily absented

himself from trial, and the court did not abuse its discretion in proceeding with the

trial in his absence. Finally, substantial evidence supports the jury’s guilty verdict.

We therefore affirm McCann’s conviction.

       AFFIRMED.
