                   IN THE COURT OF APPEALS OF IOWA

                                  No. 13-1056
                              Filed June 25, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MICHAEL CHRISTOPHER FLEMING,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Richard G. Blane II,

Judge.



      A defendant appeals his conviction for possession of a controlled

substance with intent to deliver. AFFIRMED.



      Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for appellant.

      Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney

General, Sean M. Corpstein, Legal Intern, John Sarcone, County Attorney, and

Stephan Bayens, Assistant County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
                                         2



BOWER, J.

        Michael Fleming appeals his conviction and sentence for possession of a

controlled substance with intent to deliver, in violation of Iowa Code section

124.401(1)(b)(7) (2011). He claims there is insufficient evidence to support the

conviction, as only circumstantial evidence linked him to the controlled

substance, methamphetamine.         We conclude there is substantial evidence

linking Fleming to the possession of the methamphetamine with intent to deliver

under the doctrine of constructive possession. Accordingly, we affirm.

I. Background Facts and Proceedings

        Early in the evening on March 19, 2013, Officer Brandon Killiam of the

Pleasant Hill Police Department was on patrol in the east Des Moines/Pleasant

Hill area. He noticed a passenger in a vehicle not wearing a seatbelt. The

passenger, who ducked when he saw Killiam’s police cruiser, would later be

identified as the defendant, Michael Fleming.        Killiam made a U-turn and

attempted to catch up to the vehicle, which turned down a residential street into a

driveway. When Killiam pulled up behind the vehicle, the driver was getting out

of the car, Killiam noticed the passenger door was open, and the passenger was

gone.

        Killiam spoke briefly with the driver, Frank Cooper, who falsely identified

Fleming as Chad Wright, and indicated Wright had gone into a home to visit a

friend. Killiam asked Cooper whether the passenger was fleeing, and Cooper

stated he was not. However, a neighbor soon approached Killiam and informed

him she had seen the passenger running toward Four Mile Creek. It is important
                                         3



to note that the area known as Four Mile Creek is bordered entirely by private

property, which is typically clean and well-manicured.           It is not publicly

accessible.

       Killiam went to look for Fleming and later saw Fleming walking along Four

Mile Creek. Killiam pursued Fleming, and when he was within approximately 100

to 150 yards, he identified himself as a police officer and ordered Fleming to

stop. Fleming responded by jumping down into the creek bed, which caused

Killiam to lose sight of Fleming due to the elevation of the creek bed in relation to

the bank on which Killiam stood.

       Killiam then reached the spot where Fleming had jumped and could see

ripples in the water on the far side of the bank, as if something was thrown into

the water a short time before.      However, Killiam did not see Fleming throw

anything into the water. Once Killiam located Fleming, he ordered him up out of

the creek bed. Fleming complied and was handcuffed by Killiam. At this time,

Killiam noticed some items floating in the water. He left Fleming handcuffed on

the bank and jumped into the creek bed to try to retrieve the items. Fleming

again attempted to flee, despite being handcuffed. Killiam had to abandon his

retrieval efforts in order to pursue Fleming again. He caught Fleming, led him

back to the patrol car, and searched him. Fleming was carrying clear, empty

plastic baggies, lottery cards, and $130.00 in cash.

       By this time additional officers had arrived and accompanied Killiam back

to the creek, although it was getting dark. Killiam testified he identified the path

he and Fleming had traveled by the footprints along the creek. When he reached
                                          4



the spot where he had originally detained Fleming, another officer jumped down

into the creek bed. The officers found a white towel that was clean and dry

despite the wet, muddy condition of the creek bed. Approximately three feet from

the towel was a gun, which had some sand in it but was otherwise clean and dry.

Killiam also found a pocketknife in the footprints where Fleming had stood and a

plastic baggie containing a crystal substance—later identified as 6.91 grams of

methamphetamine. The baggie and the pocketknife were dry, clean, and found

within a foot of each other. None of the items were tested for fingerprints, and no

photos were taken at the scene.

       Fleming pleaded not guilty to both counts charged: possession of a

controlled   substance    with   intent   to   deliver;   and   possession,   receipt,

transportation, or dominion and control over a firearm as a convicted felon, in

violation of Iowa Code section 724.26.           The jury found Fleming guilty of

possession with intent to deliver methamphetamine and not guilty on the firearm

charge.1

II. Standard of Review

       If, when considering the record in the light most favorable to the State,

substantial evidence supports a verdict, the verdict will be upheld.          State v.

Showens, 845 N.W.2d 436, 439–40 (Iowa 2014).                Therefore, “[w]e review

sufficiency-of-the-evidence claims for correction of errors at law.” Id. at 439.




1
 Fleming was sentenced to serve a term not to exceed forty years with application of a
sentencing enhancement because of two prior felonies to which he stipulated. He was
ordered to serve a mandatory one-third of the sentence before becoming eligible for
parole or work release.
                                              5



III. Discussion

          The recent decision in State v. Thomas has developed the landscape of

sufficiency-of-the-evidence claims in Iowa. ___ N.W.2d ___, 2014 WL 2434595

(Iowa 2014).       We use the Thomas analysis as we now consider Fleming’s

appeal.

          A jury verdict will be upheld if it is based on substantial evidence. State v.

Musser, 721 N.W.2d 758, 760 (Iowa 2006). “Evidence is substantial if it could

convince a rational jury of the defendant’s guilt beyond a reasonable doubt.” Id.

(quoting State v. Corsi, 686 N.W.2d 215, 218 (Iowa 2004) (internal quotation

marks omitted)         We review the entire record and view it in the light most

favorable to the jury’s verdict. State v. Petithory, 702 N.W.2d 854, 856 (Iowa

2005).

          The conviction for possession of a controlled substance with intent to

deliver     required    the   State   prove       (1)   Fleming   knowingly   possessed

methamphetamine, (2) Fleming knew that the substance he possessed was

methamphetamine, and (3) Fleming possessed the substance with the specific

intent to deliver it. See Iowa Code § 124.401(1)(b)(7). To meet the possession

element, the accused must have exercised dominion and control over the

substance. See Thomas, 2014 WL 2434595, at *4. Additionally, possession

may be either actual or constructive. Id. at *5. Actual possession encompasses

both contraband found on the defendant’s person, and where substantial

evidence supports a finding the contraband was on his person at one time. See

State v. DeWitt, 811 N.W.2d 460, 474 (Iowa 2012); State v. Vance, 790 N.W.2d
                                          6



775, 784 (Iowa 2010). Constructive possession is a judicial construct in which

“possession of contraband [can] be inferred based on the location of the

contraband and other circumstances.” Thomas, 2014 WL 2434595, at *5 (citing

Vance, 790 N.W.2d at 784). For example, when drugs are found on premises

within the exclusive possession of the accused, this may be enough evidence to

sustain the conviction. Id. However, when drugs are found on premises not

under the exclusive possession of the accused, additional evidence is required to

establish possession by the accused. Id. Such additional evidence may take the

form of “(1) incriminating statements made by a person; (2) incriminating actions

of the person upon the police’s discovery; (3) the person’s fingerprints on the

packages containing the controlled substance; and (4) any other circumstances

linking the person to the controlled substance.” Id. (quoting State v. Maxwell,

743 N.W.2d 185, 194 (Iowa 2008)) (internal quotation marks omitted). These

factors are not exclusive and simply provide a guide to the reviewing court. Id.

       Fleming claims the State did not prove constructive possession given the

totality of the evidence and its entirely circumstantial nature. He claims there is

no concrete link between himself and the evidence found scattered about the site

of his detention.    However, with Thomas now informing our analysis, we

conclude the evidence is sufficient to support the jury verdict.

       While it is true Killiam did not see Fleming dispose of any of the items

during his pursuit, significant evidence links Fleming to the discarded items.

Specifically, the area around Four Mile Creek is private and is not publicly

accessible.   The only foot tracks near the creek bed were Killiam’s and
                                         7



Fleming’s, indicating no one else had been in the area. All of the items were

found either on Fleming—the clear plastic baggies and the money—or at the site

of his detention—the methamphetamine in a clear plastic baggie and the pocket

knife. All of these items were consistent with the methamphetamine trade, and

none pointed toward personal use. The amount of methamphetamine recovered

was consistent with having the intent to deliver, as was the amount of money

found on Fleming at the time of his arrest. Detective Griffiths, called as an expert

by the State, testified a gram of methamphetamine had a street value of

approximately $130.00, the amount recovered from Fleming’s person.              The

pocketknife found near the methamphetamine in the creek bed is consistent with

tools used to break off pieces of methamphetamine for sale. The fact Fleming

was arrested with clear, empty plastic baggies on his person is also indicative of

possessing the intent to distribute drugs.     Finally, the condition of the items

recovered indicated recent disposal, not long-term exposure to the elements.

Fleming’s repeated attempts to escape, while not solely indicative of guilt, also

inform our assessment of his behavior.

       We recognize our supreme court’s Thomas decision was not unanimous.

2014 WL 2434595, at *13 (Hecht, J., dissenting).         Rather, the evidence in

Thomas was considered insufficient by three dissenting justices who concluded

the evidence of possession pointed equally to Thomas and to the other

occupants of the apartment. Id. However, when we apply the dissent’s view to

Fleming’s circumstances, we conclude the Thomas case is distinguishable

because here there are no other potential possessors of the property found at the
                                          8



detention site. Considering the totality of the evidence and the timeline of the

events, we conclude the evidence of possession and intent to deliver points

firmly toward Fleming.

          Viewing the record in the light most favorable to the State, as we must,

and with deference to the jury’s assessment of credibility, we conclude

substantial evidence in the record supports the jury verdict. Accordingly, we

affirm.

          AFFIRMED.
