                    IN THE COURT OF APPEALS OF IOWA

                                      No. 15-2069
                                  Filed July 19, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOHNNY AHMAN MADISON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Monona County, Steven J.

Andreasen, Judge.



      Johnny Madison appeals his conviction of possession of a controlled

substance, marijuana (first offense). AFFIRMED.



      John P. Beauvais Jr., Sioux City, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

      A state trooper stopped a vehicle driven by Johnny Madison.            In a

subsequent search of the vehicle, the trooper found a bag of marijuana on the

center console next to Madison, small jars of marijuana residue in the back seat,

and two bags of marijuana inside a pair of shoes belonging to Madison.

      The State charged Madison with possession of a controlled substance,

marijuana (first offense). See Iowa Code § 124.401(5) (2013). A jury found him

guilty as charged. On appeal, Madison contends his trial attorney was ineffective

in failing to object to a jury instruction that defined possession as including

“actual” as well as “constructive” possession. In his view, there was insufficient

evidence of actual possession to incorporate this language in the instruction.

See State v. Maxwell, 743 N.W.2d 185, 196 (Iowa 2008) (stating a district court

should not give an instruction that is unsupported by the evidence).

      To prevail on his ineffective-assistance-of-counsel claim, Madison must

prove the breach of an essential duty and prejudice. Strickland v. Washington,

466 U.S. 668, 687 (1984). “Prejudice is established if ‘there is a reasonable

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

proceeding would have been different.’” State v. Harris, 891 N.W.2d 182, 185-86

(Iowa 2017) (quoting State v. Reynolds, 746 N.W.2d 837, 845 (Iowa 2008));

accord Strickland, 466 U.S. at 694. While we normally preserve these claims for

postconviction relief, we find the record adequate to address this claim on direct

appeal. See State v. Virgil, 895 N.W.2d 873, 879 (Iowa 2017); State v.

Thorndike, 860 N.W.2d 316, 319 (Iowa 2015).
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       The instruction stated:

       2. Possession: The law recognizes several kinds of possession. A
       person may have actual possession or constructive possession. A
       person may have sole or joint possession. A person who has direct
       physical control over a thing on his person is in actual possession
       of it. A person who, although not in actual possession, has both the
       power and the intention at a given time to exercise dominion or
       control over a thing, either directly or through another person or
       persons, is in constructive possession of it. A person’s mere
       presence at a place where a thing is found or proximity to the thing
       is not enough to support a conclusion that the person possessed
       the thing.     If one person alone has actual or constructive
       possession of a thing, possession is sole. If two or more persons
       share actual or constructive possession of a thing, possession is
       joint. Whenever the word “possession” is used in the instructions
       above, it includes actual as well as constructive possession and
       sole as well as joint possession.

Cf. Iowa Crim. Jury Instructions 200.47 (2015) (same).              Assuming without

deciding that the evidence was insufficient to support the “actual possession”

portion of this instruction, Madison cannot establish Strickland prejudice.          In

closing arguments, the prosecutor only argued for a finding of constructive

possession. He stated, “There are a number of different possession possibilities

that the instruction defines. It talks about actual possession . . . , but in this case,

ladies and gentlemen, we are talking about constructive possession.” Later, he

reiterated, “[I]n this case, we are talking about constructive possession.

Constructive possession.” Because the prosecutor withdrew actual possession

as an alternative, there is no reasonable probability of a different outcome had

counsel objected to the actual possession language in the instruction.             See

Thorndike, 860 N.W.2d at 323 (finding no Strickland prejudice in counsel’s failure

to object to an alternative in an instruction, where “the State effectively removed

that alternative from the jury’s consideration during its closing argument”).
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      Madison also asserts he “may have additional claims based upon

ineffective assistance of counsel that are not immediately apparent from the

record” and “any other claims based upon ineffective assistance of counsel . . .

should be preserved for a post-conviction [relief] proceeding.” “[A]n ineffective-

assistance-of-counsel claim ‘need not be raised on direct appeal . . . in order to

preserve the claim for postconviction relief purposes.’” Id. at 319 (quoting Iowa

Code § 814.7(1)). We decline to take any action with respect to this assertion.

      We affirm Madison’s conviction, judgment, and sentence for possession of

marijuana.

      AFFIRMED.
