                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0573
                               Filed May 13, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LARRY LAVELL WIGGINS,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Mark R. Lawson,

Judge.



      A defendant appeals his convictions and sentence for possessing controlled

substances with intent to deliver and failure to affix a tax stamp. CONVICTIONS

AFFIRMED, SENTENCES AFFIRMED IN PART AND VACATED IN PART, AND

CASE REMANDED FOR RESENTENCING.



      Martha J. Lucey, State Appellate Defender, and Melinda J. Nye and

Stephan J. Japuntich, Assistant Appellate Defenders, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
                                          2


TABOR, Presiding Judge.

       A jury found Larry Wiggins guilty of four drug-related charges. He appeals

those convictions, alleging the State did not present substantial evidence to

support the verdicts. Viewing the evidence in the light most favorable to the State,

we affirm the verdicts. Wiggins also contends his trial attorney was ineffective for

not objecting to testimony from the State’s expert witness. Reviewing those claims

de novo, we find Wiggins did not show counsel’s performance was subpar or

resulted in prejudice. Finally, Wiggins challenges aspects of the sentencing order.

Because the restitution determination did not comply with State v. Albright, 925

N.W.2d 144 (Iowa 2019), we vacate the sentencing order in part and remand for

the district court to calculate Wiggins’s reasonable ability to pay court-appointed

attorney fees and court costs.

   I. Facts and Prior Proceedings

       The “call for service” on a gold Nissan Altima came through the Davenport

police radio in the dead of the night. Patrol Officer Joel Griffin turned on both his

emergency lights and siren before heading in the direction of the call. About a

minute later, Officer Griffin saw the Altima make a left turn at the corner of

Welcome Way and Kimberly Avenue. The chase began.

       Siren blasting, Officer Griffin caught up with the Altima. The Altima’s driver

signaled and pulled over, perhaps believing the patrol car would drive by. But

instead, Officer Griffin pulled behind the Altima to conduct a traffic stop. Officer

Griffin later testified he had about fifteen seconds to notice “at least two occupants”

in the front seat before the Altima sped away. The Altima’s driver ran red lights
                                          3


and sped by other cars. Soon Officer Robert Farra joined the pursuit, positioning

himself directly behind the Altima.

       The chase ended when the Altima stopped in an alley between Brown and

Warren Streets. While the car was still moving, two occupants—one female and

one male—jumped out and darted in opposite directions. The woman emerged

from the driver’s door and the man from the front passenger’s seat. The Altima

kept rolling until it hit a tree in the wooded area at the end of that alley. The video

recording from Officer Farra’s dash camera showed him running after the

passenger. After a short foot-chase, Officer Farra apprehended the runaway

passenger, Larry Wiggins.

       Police searched the Altima and the surrounding area. Officer Farra found

a bag of marijuana, a “Hello Kitty” key chain, and a lighter on the ground where

Wiggins had jumped from the car. Police also retraced Wiggins’s path during the

foot-chase and found a plastic baggie containing 0.14 grams of cocaine base.

Under the Altima’s front passenger seat, officers found another plastic baggie

containing four to five pills.1 Under that same seat, they also found a green leafy

substance and a second bag of marijuana laying on top of a digital scale. Police

found a third bag of marijuana resting on the front passenger seat. Last, on the

floor of the front passenger side, police found a fourth baggie of marijuana. The

four baggies of marijuana weighed—7.9 grams; 27.7 grams; 27.8 grams; and 7.6

grams—respectively.




1 The police initially thought the five pills were MDMA (ecstasy), but the lab later
identified them as methamphetamine.
                                           4


         Plus, police found a loose green leafy substance, which also appeared to

be marijuana, in the cup holder of the Altima’s center console. Also from that

center console, police recovered two documents: one bearing Wiggins’s name and

the other bearing the name of Darrell Allen Williams.2 Lastly, the officers found an

identification card belonging to D’Asia Ruplinger, the likely driver of the Altima.

         The State filed a trial information charging Wiggins with possession with

intent to deliver MDMA (Count I), possession with intent to deliver marijuana

(Count II), failure to affix a drug tax stamp (Count III), and possession of crack

cocaine (Count IV). Before trial, the State amended Count I to charge possession

with intent to deliver methamphetamine.

         At trial, the State offered expert testimony from Davenport Police Lieutenant

Kevin Smull. In discussing the State’s proof of intent to deliver, Smull pointed out

“there’s no paraphernalia . . . there’s nothing there to show that it was for user

amount from an ingestion point.” In addition, Smull testified:

         The marijuana, you know, it’s over 42.5 grams, so it qualifies for the
         drug stamp. And the way it’s presented in its packaging, you have
         two ounce quantities and you have two quarter-ounce quantities.
         That would be for more distribution than it would be for personal use.
         It makes no sense to me to have marijuana in four separate
         packages for personal use. You would buy it in one package.

         After hearing the evidence, the jury found Wiggins guilty on all four counts.

The district court sentenced him to concurrent terms of imprisonment not to exceed

ten years. The court suspended the fines. In addition, the court ordered Wiggins

to pay a law enforcement initiative (LEI) surcharge of $125 on each count. See

Iowa Code § 911.3 (2018). The court also ordered the ten-dollar drug abuse


2   Williams was D’Asia Ruplinger’s brother.
                                          5

resistance education (DARE) surcharge on the three drug-possession counts. See

Iowa Code § 911.2. The court ordered Wiggins to repay court-appointed attorney

fees in an amount not to exceed $3300. But the court found he was not reasonably

able to pay jail fees.

       II.    Scope and Standards of Review

       On the sufficiency claims, we review for correction of errors at law. State v.

Ramirez, 895 N.W.2d 884, 890 (Iowa 2017). We will uphold the jury verdicts if

substantial evidence supports them. Id. We consider evidence to be substantial

if, when viewed in the light most favorable to the State, it can convince a rational

jury that the defendant is guilty beyond a reasonable doubt. State v. Sanford, 814

N.W.2d 611, 615 (Iowa 2012). Inherent in this standard of review is the recognition

that the jurors may reject or credit evidence as they see fit. Id.

       We also review restitution orders for correction of errors at law. Albright,

925 N.W.2d at 158. “[W]e determine whether the court’s findings lack substantial

evidentiary support, or whether the court has not properly applied the law.” Id.

(quoting State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001)).

       For Wiggins’s claim of ineffective assistance, we apply a de novo review.

State v. Query, 594 N.W.2d 438, 444 (Iowa Ct. App. 1999). We also review his

equal protection challenge de novo. See State v. Wade, 757 N.W.2d 618, 622

(Iowa 2008) (noting “statutes are cloaked with a presumption of constitutionality”

and “challenger bears a heavy burden” to prove unconstitutionality).
                                          6


       III.    Analysis

       A.      Sufficiency of the evidence.

       Wiggins challenges two aspects of the State’s case against him. First, he

argues the State failed to prove he had constructive possession of the controlled

substances.3    Second, he argues if the State did prove he possessed the

marijuana, it did not offer sufficient evidence that he failed to affix a label on the

marijuana packaging to show payment of state taxes on that substance. We will

address each challenge in turn.

       1.      Constructive possession

       Let’s start with constructive possession. To prove constructive possession,

the State had the burden to show Wiggins knew the controlled substances were

present in and around the Altima and had the authority or right to exercise control

over them. See State v. Kern, 831 N.W.2d 149, 161 (Iowa 2013). The State may

prove constructive possession by inferences. See State v. Reed, 875 N.W.2d 693,

705 (Iowa 2016).

       Because Wiggins was not the only person in the place where the officers

found the drugs, we consider several factors when deciding if he had constructive

possession of them. These factors include: (1) any incriminating statements by

Wiggins; (2) any incriminating actions upon police discovery of the drugs among

his belongings; (3) any fingerprints on the packaging; and (4) any other


3 The State can prove possession as either actual or constructive. State v. Kemp,
688 N.W.2d 785, 789 (Iowa 2004). A defendant has actual possession if an item
is on their person. Id. A defendant has constructive possession if they knew about
the item’s presence and have authority or right to maintain control over it. Id.
Because police found no drugs on Wiggins’s person, this matter concerns
constructive possession. See id.
                                          7

circumstances linking him to the drugs. See State v. Webb, 648 N.W.2d 72, 79

(Iowa 2002). Further, because police found drugs in a vehicle, we may consider

these additional questions: (1) were the drugs in plain view; (2) were they with

Wiggins’s personal effects; (3) were they on his side of the car or next to him;

(4) did he own the vehicle; and (5) did he act suspiciously. See State v. Dewitt,

811 N.W.2d 460, 475 (Iowa 2012).

       Wiggins argues his “mere proximity” to the controlled substances recovered

at the scene “is not enough” to sustain his convictions. He emphasizes he did not

own the Altima where police found most of the drugs. And the documents found

in the console shows he did not have exclusive control of the car.

       Granted, Wiggins and the driver had joint access to the interior of the Altima.

See    id.    at   474–75   (discussing   modern   role   of   vehicles   as   shared

accommodations). Wiggins also made no incriminating statements to police. Nor

did police ask lab technicians to do fingerprinting on the baggies found.

       But other circumstances did link Wiggins to the drugs. For example, the

State produced strong evidence that Wiggins acted suspiciously. Wiggins bailed

out of the car even before it stopped. He then ran from police. An officer had to

chase him on foot before taking him into custody. After the chase, police found

incriminating items, including a baggie of crack cocaine, strewn on the path of his

retreat.     See State v. Thomas, 847 N.W.2d 438, 444 (Iowa 2014) (finding

constructive possession when defendant’s actions were “explainable most

logically as an effort to get the drugs off his person”). Back at the Altima, police

found marijuana in plain view. See State v. McMullen, 940 N.W.2d 456, 462 (Iowa

Ct. App. 2019) (noting constructive possession could be supported by presence of
                                           8


marijuana in car’s center console). Officers also found methamphetamine and a

digital scale under the passenger seat where Wiggins had been sitting.

       We are satisfied this evidence was sufficient for the jury to reasonably infer

that Wiggins knew the drugs were present and exercised control and dominion

over them. See Kemp, 688 N.W.2d at 790.

       2.     Proof of Tax Stamp Violation

       Wiggins next contends the State did not prove he violated the tax stamp

provision at Iowa Code section 453B.12. To convict Wiggins of that offense, the

jury had to find the State offered proof beyond a reasonable of three elements:

(1) he knowingly possessed marijuana; (2) which weighed forty-two and one-half

grams or more; and (3) “did not have permanently affixed to it a stamp, label, or

other official indication of payment of the state tax imposed on the substance.” See

State v. White, 545 N.W.2d 552, 555 (Iowa 1996) (listing elements of offense).

       Wiggins contests the State’s proof of the third element.          He contends

testimony from Lieutenant Smull that he saw no tax stamps when he reviewed

photographs of the seized drugs fell short of proof beyond a reasonable doubt.

Wiggins underscores that Smull did not play a role in the original investigation of

the case.

       The State counters that the photographs of the marijuana packages offered

into evidence were sufficient to prove the tax stamp violation. Plus, in the State’s

view, the jury could rely on Smull’s observations. In addition, at trial, the prosecutor

resisted the motion for judgment of acquittal, arguing:

       The bags are in evidence; they don’t have a stamp. That’s clear.
       The jury can see that. It doesn’t need to be said out loud,
       necessarily, but it was said out loud. He did say he reviewed the
                                            9


       evidence in this case. Lieutenant Smull did testify that he was
       familiar with what the tax stamp looked like and that it was not
       present; therefore, there was none affixed.

       We find substantial evidence to support Wiggins’s tax stamp conviction.

The jury could assign the appropriate weight to Smull’s testimony, which was

corroborated by photographic exhibits and the baggies of marijuana collected by

the officers and admitted into evidence at trial. See State v. Rivera, 614 N.W.2d

581,   584   (Iowa   Ct.   App.   2000)     (finding   testimony   about    weight   of

methamphetamine mixture was corroborated by photograph of jar which clearly

portrayed amount of liquid it contained).

       Because the State offered substantial evidence to support Wiggins’s

convictions, we decline to disturb the jury’s verdicts.

       B.     Ineffective Assistance of Counsel

       Wiggins next argues he did not receive effective assistance of counsel.4 He

contends his trial attorney breached a material duty by failing to object when

Lieutenant Smull gave expert testimony for the State. More specifically, Wiggins

argues counsel should have objected when Lieutenant Smull testified “there was

no reason to even investigate” Williams—the driver’s brother—because police

found the drugs where Wiggins had been sitting in the Altima.              In Wiggins’s

estimation, the expert impermissibly commented on his guilt by suggesting the



4 The Iowa Code no longer permits appellate courts to decide claims of ineffective
assistance on direct appeal. See 2019 Iowa Acts ch. 140, § 31 (codified at Iowa
Code § 814.7 (2020)). But that provision does not apply to a judgment entered
before July 1, 2019. See State v. Macke, 933 N.W.2d 226, 228 (Iowa 2019).
Because the judgment here was entered in March 2019, we are not foreclosed
from considering Wiggins’s claim of ineffective assistance. See State v. Kuhse,
937 N.W.2d 622, 627 (Iowa 2020).
                                          10

police did not need to pursue an alternative suspect. See State v. Myers, 382

N.W.2d 91, 97 (Iowa 1986) (“A witness is not permitted to express an opinion as

to the ultimate fact of the accused’s guilt or innocence.”).

       In a similar vein, Wiggins insists his attorney should have objected to

Smull’s testimony about the packaging of the drugs: “The marijuana is, I have no

doubt in my mind, based on my training and experience and what I’ve seen over

the years was for distribution, just the way the presentation of it, in each individual

bag.” The prosecutor highlighted that expert testimony in closing arguments.

       In a second ineffective-assistance claim, Wiggins alleges his attorney was

remiss in not objecting to a lack of foundation for Smull’s tax-stamp testimony.

       To support his claims of ineffective assistance, Wiggins must show

(1) counsel failed to perform an essential duty and (2) prejudice resulted. See

Strickland v. Washington, 466 U.S. 668, 687–88 (1984). To satisfy the breach-of-

duty prong, Wiggins “must show that counsel’s performance was deficient,”

meaning the errors were so serious that the attorney stopped functioning as the

“counsel” guaranteed by the Sixth Amendment. See id. at 687. On the prejudice

prong, Wiggins must show “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” See

id. at 694.   “A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. “Failure to prove either prong is fatal to an

ineffective-assistance-of-counsel claim.” State v. Lorenzo Baltazar, 935 N.W.2d

862, 868 (Iowa 2019).
                                           11


       1.     Admissibility of Expert Opinion

       To start, we address Wiggins’s complaint about inadmissible opinion

testimony. When thinking about counsel’s duty, we are mindful that Iowa courts

are committed to a liberal view on the admissibility of expert testimony. See Iowa

R. Evid. 5.702; State v. Tyler, 867 N.W.2d 136, 153 (Iowa 2015). We will not

interfere with the district court’s exercise of discretion in admitting an expert opinion

unless we see manifest abuse. See State v. Ogg, 243 N.W.2d 620, 621 (Iowa

1976). But we do not allow a witness to express “an outright opinion” on the

defendant’s guilt. Id.

       In the first passage Wiggins highlights from Lieutenant Smull’s testimony,

the expert suggested police didn’t need to investigate another suspect because

they found the drugs in the passenger seat that Wiggins had occupied. We agree

that opinion crossed the “fine” but distinct line between permissible and

impermissible expert testimony. See State v. Vesey, 482 N.W.2d 165, 167 (Iowa

Ct. App. 1991). The prosecutor asked Smull about carrying drugs for personal use

without “having any devices to use those drugs in the car.” Smull’s response went

beyond a general discussion of the indicia of personal use versus drug dealing.

By saying police needed to look no further than Wiggins, Smull commented on his

guilt. Defense counsel could have lodged a successful objection to that remark.

       But “counsel need not take advantage of every opportunity to object in order

to satisfy the standard of normal competency.” State v. Carberry, 501 N.W.2d 473,

477 (Iowa 1993).      Instead of objecting, Wiggins’s counsel made a strategic

decision to cross examine Smull on the ambiguity in determining who is in

possession of the drugs when there’s more than one person in a vehicle.
                                         12


“Imprudent trial strategy, miscalculated tactics or mistakes in judgment do not

necessarily amount to ineffective counsel.” Vesey, 482 N.W.2d at 168. Wiggins

has not shown he was prejudiced by counsel’s strategy. See id. Even if counsel

had objected, given the State’s strong evidence of constructive possession, no

reasonable probability existed that Wiggins would have been acquitted without that

expert opinion.

       The second passage from Smull’s testimony—discussing how the

difference in drug packaging distinguishes between users and dealers—was not

objectionable. An expert witness may testify to “the customs and practices of those

who use or deal in narcotics.” Id. at 167. That expert may also address whether

the actions of the accused fit with the “well-defined modus operandi” of the offense.

Id. Lieutenant Smull did not testify that Wiggins possessed the requisite intent to

deliver those drugs.    He merely expressed his opinion that the manner of

packaging was consistent with how drugs are parceled by dealers. Counsel had

no duty to make a meritless objection. See State v. Shumpert, 554 N.W.2d 250,

254 (Iowa 1996).

       2.     Foundation for Tax-Stamp Testimony

       We next turn to Wiggins’s claim that counsel was ineffective in failing to

object to Lieutenant Smull’s assertion that the narcotics were bereft of tax stamps.

According to Wiggins, Smull lacked adequate personal knowledge to testify to the

absence of the tax stamps as he was not part of the investigation.

       Wiggins claims counsel should have objected under Iowa Rule of Evidence

5.901(a) (requiring proponents of evidence to authenticate that the item offered is

what they claim it is). Yet he admits the question raised is “slightly different”
                                         13


because he is concerned with Smull’s observations of what was missing, not what

was present.

       The State contends counsel had no duty to object on foundation grounds.

We agree. Lieutenant Smull testified that he reviewed the supplemental police

reports, the physical evidence, the photographic evidence, and the lab reports.

From that review, he discerned that the marijuana packages had no stamp

attached to show state taxes had been paid. His testimony was admissible without

additional foundation. Further, Wiggins fails to show he was prejudiced by Smull’s

testimony about the absence of tax stamps. The jury was able to see firsthand

from the drugs admitted as evidence and from the crime scene photographs that

Wiggins had not affixed tax stamps.

       Wiggins did not prove he received ineffective assistance in regard to any

part of Lieutenant Smull’s testimony.

       C.      Sentencing Issues

       In the last issue of his brief, Wiggins argues the sentencing court mistakenly

ordered him to pay court costs, attorney fees, the DARE surcharge, and the LEI

surcharge. He challenges the restitution order under the reasonable-ability-to-pay

analysis in Albright, 925 N.W.2d at 158. He also contends the LEI surcharge

violates his equal protection rights. We will address those two claims in turn.

       1.      Restitution

       In the sentencing process, the district court must order restitution “to the

clerk of court for fines, penalties, [and] surcharges” without regard to an offender’s

reasonable ability to pay. Iowa Code § 910.2(1) (2018); Albright, 925 N.W.2d at

161. As to court costs and court-appointed attorney fees, the court can only award
                                          14

restitution “to the extent the offender has the reasonable ability to pay.” 5 Albright,

925 N.W.2d at 159.

       Here, the court decided Wiggins did not have the reasonable ability to pay

jail fees but did have the reasonable ability to pay up to $3300 in attorney fees, as

well as court costs. Because the district court did not have the total calculation of

the restitution available when making its reasonable-ability-to-pay determination,

we vacate that part of the sentence and remand for resentencing consistent with

Albright. See State v. Covel, 925 N.W.2d 183, 189 (Iowa 2019). The State agrees

with this course of action.

       2.     LEI Surcharge

       Last, Wiggins argues the imposition of the LEI surcharge violated his equal

protection rights as guaranteed by both state and federal constitutions. See U.S.

Const. amend. XIV; Iowa Const. art. I, § 6; Nguyen v. State, 878 N.W.2d 744, 757

(Iowa 2016). “[T]he equal protection guarantee requires that laws treat all those

who are similarly situated with respect to the purposes of the law alike.” Varnum

v. Brien, 763 N.W.2d 862, 883 (Iowa 2009); accord Nguyen, 878 N.W.2d at 757.

       Iowa Code section 911.3 mandates the imposition of a $125 surcharge

following judgment of conviction for certain offenses.6 Wiggins asserts “he is


5 Wiggins argues the DARE surcharge should be subject to the reasonable-ability-
to-pay determination because it is a “contribution to a local anticrime organization”
under 910.1(2). We disagree. See State v. Tillman, No. 18-1956, 2020 WL
376551, at *4 (Iowa App. Jan. 23, 2020) (holding LEI and DARE surcharges were
not subject to a determination of the offender’s reasonable ability to pay); State v.
Thompson, No. 19-0230, 2020 WL 110397, at *1 (Iowa App. Jan. 9, 2020)
(rejecting argument that DARE surcharge was equivalent to contribution to local
anticrime organization).
6 They include controlled-substance offenses under chapter 124; pharmacy-

related offenses under chapter 155A; excise-tax violations under chapter 453B;
                                          15


similarly situated with other criminal defendants who are treated differently by

virtue of the fact that they are not assessed the LEI surcharge.” From there, he

submits there is no rational basis for imposing the LEI surcharge on some

defendants while exempting others. We disagree.

       Wiggins cannot show he is similarly situated with offenders who have

violated statutes not listed in section 911.3(1). Crimes fall into different categories

based on their respective elements. “[T]he legislature is free to impose disparate

punishments for different crimes so long as the offenses are distinguishable on

their elements.” State v. Ceaser, 585 N.W.2d 192, 196 (Iowa 1998), overruled on

other grounds by State v. Bruegger, 773 N.W.2d 862, 870–72 (Iowa 2009). “In

other words, if the elements of the offenses are not the same, persons committing

the crimes are not similarly situated and, therefore, may be treated differently”

without violating the equal protection clause. Id. We find no merit in Wiggins’s

challenge to the constitutionality of section 911.3(1). See Thompson, 2020 WL

110397, at *2.

       CONVICTIONS AFFIRMED, SENTENCES AFFIRMED IN PART AND

VACATED IN PART, AND CASE REMANDED FOR RESENTENCING.




burglary offenses under chapter 713; theft, fraud, and related offenses under
chapter 714; forgery and related crimes under chapter 715A; damage and trespass
to property under chapter 716; possessing contraband under section 719.7;
furnishing a controlled substance or intoxicating beverage to an inmate under
section 719.8; and prostitution, pimping, and pandering, in violation of sections
725.1 through 725.3.
