                    IN THE COURT OF APPEALS OF IOWA

                                      No. 18-0442
                                  Filed April 17, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSE MANUEL DOMINGO MENDEZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



      A defendant appeals his convictions for possession of methamphetamine

with intent to deliver, failure to possess a drug tax stamp, carrying a weapon, and

criminal gang participation. AFFIRMED.



      Christopher R. Kemp of Kemp & Sease, Des Moines, for appellant.

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

Attorney General, for appellee.



      Considered by Tabor, P.J., and Mullins and Bower, JJ.
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BOWER, Judge.

       Jose Domingo Mendez1 appeals his convictions for possession with intent

to deliver methamphetamine with a firearm enhancement, failure to affix a drug tax

stamp, criminal gang participation, and carrying a weapon. Mendez claims the

district court erred in overruling his motion for judgment of acquittal and the State

introduced insufficient evidence to support all four counts. We affirm.

       I.     Background Facts & Proceedings

       Shortly after midnight on July 15, 2017, Mendez was driving his girlfriend’s

vehicle with three passengers inside.        After spotting a police car, Mendez

attempted to evade police. Mendez parked and all four persons ran from the

vehicle, but law enforcement officers caught and detained all four. Officers saw a

.22-caliber Mossberg assault rifle propped between the center console and front

passenger seat. During a search of the vehicle, officers found over twelve grams

of methamphetamine along with small baggies in an open center armrest console

by Mendez’s cell phone.      During a pat-down, officers found half a gram of

methamphetamine in Mendez’s pocket along with $275 in cash. Mendez told the

officers he worked in construction and was paid in cash.

       The passengers in the vehicle all wore the color of a known criminal gang,

and a bandana of the same color was found in the driver’s area of the vehicle. The

driver and two passengers had tattoos connecting them to the same gang. One

of the passengers admitted being a member of the gang.




1
   The defendant is referred to in the record as Jose Domingo Mendez, and he signed
court documents as Jose Domingo and Jose Mendez. We will refer to him by the name
used in his brief—Mendez.
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       On August 23, the State charged Mendez with possession of a controlled

substance with intent to deliver including a firearms enhancement, in violation of

Iowa Code section 124.401(1)(b)(7) and (e) (2017); failure to possess a tax stamp,

in violation of sections 453B.3 and 453B.12; criminal gang participation, in violation

of sections 723A.1 and 723A.2; and carrying a weapon, in violation of section

724.4(1)(a).

       The case proceeded to a jury trial in January 2018. Six police officers

testified on behalf of the State. A redacted video and audio recording of Mendez

in the back of a police vehicle was shown, during which Mendez denied knowledge

of the methamphetamine in the center console and the firearm leaning against the

front passenger seat. Mendez testified in his own defense, stating he did not know

the methamphetamine in the center console was there, his cousin brought the

firearm into the vehicle, and he was not a member of the gang but used to

associate with the gang’s members.

       At the close of all evidence, Mendez moved for judgment of acquittal,

claiming the State had not established sufficient evidence of any count for

conviction. The court denied the motion and submitted the case to the jury. The

jury returned a guilty verdict on all counts. On March 7, the court sentenced

Mendez to the statutory indeterminate prison term not to exceed fifty years with a

one-third mandatory minimum.

       Mendez appeals, claiming the evidence is insufficient to prove any of the

charges.
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      II.    Standard of Review

      We review sufficiency of evidence claims for correction of errors at law.

State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014). We will consider all evidence

in the record, including all reasonable inferences fairly drawn from the evidence,

viewed in the light most favorable to the State. State v. Reed, 875 N.W.2d 693,

704 (Iowa 2016). We consider both inculpatory and exculpatory evidence. Id. We

will uphold a verdict supported by substantial evidence in the record. State v.

Showens, 845 N.W.2d 436, 440 (Iowa 2014). “Evidence is substantial when ‘a

rational trier of fact could conceivably find the defendant guilty beyond a

reasonable doubt.’” State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016) (quoting

State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997)).

      III.   Sufficiency of the Evidence

      On appeal, Mendez claims the district court erred in denying his motion for

judgment of acquittal, claiming the State failed to produce sufficient evidence to

prove any of the charges.

      A.     Possession with intent to deliver. Mendez claims the State failed

to prove he had constructive possession of the methamphetamine found in the

open center console of the vehicle he was driving.           Mendez claims the

methamphetamine belonged to one of the passengers who placed it in the console

when leaving the vehicle.

      “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.’” Reed, 875 N.W.2d at 705 (quoting State v.

Maxwell, 743 N.W.2d 185, 193 (Iowa 2008)). Inferences may be used to prove
                                         5

constructive possession.     Id.   “We do not presume possession where the

defendant does not own the car and a finding of constructive possession cannot

rest on mere proximity.” State v. Cashen, 666 N.W.2d 566, 572 (Iowa 2003).

When a controlled substance is found in a location under joint control, such as the

console of a vehicle, an inference of possession cannot be made without further

evidence. State v. Carter, 696 N.W.2d 31, 39 (Iowa 2005). The court must

determine if “all the facts and circumstances create a reasonable inference that

the person knew of the presence of the controlled substance and had control and

dominion over it.” Maxwell, 743 N.W.2d at 194. Intent to deliver may be inferred

from how the controlled substance is packaged, large amounts of cash, and the

quantity of the controlled substance. State v. Grant, 722 N.W.2d 645, 648 (Iowa

2006).

         The vehicle was owned by Mendez’s girlfriend, and he was the only one

driving it that night. The officers conceded during trial that the console was within

easy reach of all four persons in the vehicle, but only Mendez had property mingled

with the drug container. Mendez’s phone was found in the same open center

armrest console by the methamphetamine. A glass pipe was found on the floor by

the passenger seat, but no other paraphernalia was found. Mendez was under the

influence of methamphetamine at the time of the arrest and had a personal amount

of methamphetamine in his pocket. Drugs were not found on the passengers, and

the officers testified the passengers did not exhibit signs of having taken

methamphetamine.

         On the vehicle video, Mendez admitted to the officers he possessed the

personal-use quantity of methamphetamine found in his pocket but denied
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knowledge of the drugs in the center console. Mendez also denied knowledge of

the assault rifle clearly visible in the front near the center console in the car. The

video also shows Mendez exhibiting signs of being under the influence of

methamphetamine.

       Viewed in the light most favorable to the State, the evidence is sufficient to

infer Mendez knew of and had control over the methamphetamine in the center

console. A reasonable jury could infer the armrest-console methamphetamine

belonged to Mendez when he had a smaller quantity in his pocket, his phone was

found in the same location, he had possession and control of the vehicle, and he

was under the influence while none of the passengers had drugs on them and

were not under the influence of drugs. The jury could infer an intent to deliver from

the presence of small individual baggies with the methamphetamine, the large

amount of methamphetamine in the car, and the amount of cash found on Mendez.

We find substantial evidence supports the jury’s verdict on possession with intent

to deliver.

       The conviction for violation of tax stamp rises and falls with the conviction

relating to the methamphetamine in the center console. Because we find Mendez

had constructive possession of the center console drugs, we affirm his conviction

relating to the drug tax stamp.

       B.     Criminal gang participation. Mendez claims that although he had

been friends with gang members in high school, he never joined the gang and had

stopped spending time with them after being shot and a cousin’s deportation.

However, at least one of the passengers admitted to being part of the gang, all

three passengers wore the gang’s color, and a bandana in the gang’s color was
                                          7


found by Mendez’s seat, showing Mendez’s continued association with gang

members. Mendez and the two male passengers all had tattoos associated with

the criminal gang and its affiliates. Mendez communicated telephonically with

known gang members while in custody before trial. He knowingly transported in

town an assault rifle, which he testified belonged to an admitted gang member.

Viewed in the light most favorable to the State, substantial evidence supports the

jury’s verdict on criminal gang participation.

       C.     Carrying weapons and firearm enhancement. For the carrying

weapons charge, the State was required to prove Mendez, “within the limits of any

city, [went] armed with . . . any loaded firearm of any kind.” See Iowa Code

§ 724.4(1). For purposes of the statute, going armed includes “when an occupant

of a vehicle consciously and deliberately keeps . . . any loaded firearm where it is

readily accessible.” State v. Alexander, 322 N.W.2d 71, 72 (Iowa 1982). If a

firearm is not in the defendant’s exclusive possession, knowledge of the weapon

and control over it must be established by proof. Reed, 875 N.W.2d at 708.

       Similarly, the firearm enhancement for a controlled-substances offense

requires the person be “in the immediate possession or control of a firearm” while

participating in the controlled substances violation. We have found Mendez’s

conviction of possession with intent to deliver to be supported by substantial

evidence. Immediate possession means actual possession on the person, while

immediate control may be established by close proximity to the firearm allowing

immediate dominion over it. State v. McDowell, 622 N.W.2d 305, 307 (Iowa 2001).

In either immediate possession or immediate control, the defendant must have had
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knowledge of the presence of the firearm. Id. The firearm was not found on

Mendez, making this an immediate-control case.

      Mendez testified he saw his cousin, who sat in the passenger seat, bring

the firearm into the vehicle over Mendez’s objections, establishing his knowledge

of the presence of the weapon in the vehicle. His cousin told law enforcement the

firearm was in the vehicle when he entered. The firearm, an assault rifle, was

muzzle down in the passenger seat immediately next to the center console. Either

the driver or the passenger could easily reach the firearm. The State established

close proximity to the firearm allowing immediate dominion over it, as well as

evidence of control by Mendez. Viewed in the light most favorable to the State,

we find substantial evidence supports the jury’s verdict on the carrying weapons

charge and supporting the firearm enhancement to the possession charge.

      We find a rational trier of fact could conceivably find Mendez guilty beyond

a reasonable doubt of all offenses.

      AFFIRMED.
