                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0642
                               Filed May 13, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

QUINTIN DEMILO CLEMONS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Joel W. Barrows,

Judge.



      A defendant appeals his conviction for possession or conspiracy to possess

marijuana with intent to deliver. AFFIRMED.



      Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
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SCHUMACHER, Judge.

       Quintin Clemons appeals his conviction for possession or conspiracy to

possess marijuana with intent to deliver. We determine Clemons’s conviction may

be affirmed on the ground he conspired to possess marijuana with intent to deliver,

which he has not challenged on appeal. We also find there is sufficient evidence

to support the conviction for the alternate theory of possession of marijuana with

intent to deliver.   We determine Clemons’s claim of ineffective assistance of

counsel should be preserved for possible postconviction-relief proceedings

because the record is inadequate to address his claim in this direct appeal. We

conclude the district court adequately expressed the reasons for Clemons’s

sentence. Accordingly, we affirm Clemons’s conviction and sentence.

       I.     Background Facts & Proceedings

       In the late evening hours of August 10, 2018, Corporal Brandon Koepke of

the Davenport Police Department was on patrol near a venue that was hosting a

concert. He stopped a red Chevy Impala because it had dark-tinted windows.1

Chrisann Hughes, the driver, testified that when the car was stopped, she took a

bag of marijuana that was in the center armrest of the vehicle and stuck the bag in

her pants. Corporal Koepke testified that when he first approached the vehicle he

noticed a faint odor of marijuana. Clemons was in the front passenger seat in the

vehicle. He had his seat reclined so that “it was almost touching the back seat.”

       Corporal Koepke went back to his squad car to run the information for

Clemons and Hughes through his computer. When he returned to the vehicle, he


1 Corporal Koepke tested the windows with a meter and gave the driver a citation
for having excessively dark windows.
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“could smell a very strong odor of marijuana coming from the vehicle.” He had

Hughes get out of the vehicle, and she gave him a bag containing 15.6 grams of

marijuana, which she had in her pants.2 The bag was ripped, and some of the

marijuana was coming out of the bag.

        Corporal Koepke called for backup. Officers searched the Chevy Impala.

In the passenger-side door next to where Clemons was sitting, officers found three

plastic baggies with the corners torn off. In the map pocket located directly behind

the driver’s seat, officers found a gallon-size bag with marijuana residue and a

digital scale with marijuana residue. With his seat reclined, Clemons would have

been able to reach the gallon-size bag and the digital scale. Corporal Koepke

testified these would be difficult for Hughes to reach given the location. Both

Clemons and Hughes claimed to own the scale. Clemons had $986 in cash

bundled in his pocket—one bundle with $40, one bundle with $60, one bundle with

$65, and one bundle with $821. Clemons and Hughes were arrested. At the jail,

an additional three grams of marijuana were found on Hughes.

        Clemons was charged with possession of marijuana with intent to deliver or

conspiring with another to possess marijuana with intent to deliver, in violation of

Iowa Code section 124.401(1)(d) (2018). The State also alleged Clemons was an

habitual offender.

        Clemons waived his right to a jury trial, and the case was tried to the court.

Corporal Koepke testified the amount of marijuana carried by Hughes did not

correspond to personal use.        The marijuana was originally located in the



2   Hughes subsequently pled guilty to possession of marijuana.
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compartment between Hughes and Clemons. The three baggies with the corners

missing, which indicated drug sales, were near where Clemons was sitting. The

officer stated baggies and digital scales are often used in the sale of controlled

substances. These items were accessible to Clemons in the vehicle. The officer

also stated that persons involved in the sale of drugs often carried bundles of cash.

        Clemons testified he used the digital scale to weigh marijuana before he

smoked it. Hughes stated Clemons had a large amount of cash because he

receives Social Security disability benefits. Clemons denied saying he owned the

digital scale. He also stated he had cash from a social security check. He stated

he had the money in bundles because he wanted to buy tickets for the concert.

The bundles of cash, however, did not correspond to the price of the tickets nor to

the amount of social security payments Clemons receives each month.

        The district court found Clemons guilty of possession or conspiracy to

possess marijuana with intent to deliver, as an habitual offender.3 Clemons was

sentenced to a term of imprisonment not to exceed fifteen years. He now appeals.

        II.    Sufficiency of the Evidence

        Section 124.401(1) applies when a person possesses a controlled

substance with intent to deliver or “conspire[s] with one or more persons” to

possess a controlled substance with intent to deliver. Clemons argues that the

State did not adequately show he possessed marijuana with intent to deliver.

Specifically, he argues the State did not show he had actual or constructive

possession of marijuana.



3   After a colloquy, Clemons stipulated to his previous offenses.
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       A.     The State contends there is sufficient evidence in the record to show

Clemons and Hughes conspired to possess marijuana with intent to deliver.4

Conspiracy is an alternative means of violating section 124.401(1).          State v.

Maghee, 573 N.W.2d 1, 7 (Iowa 1997). The State also contends there is sufficient

evidence to support a conviction under the alternate theory. We review claims

challenging the sufficiency of the evidence to support a conviction for the correction

of errors of law. State v. Wickes, 910 N.W.2d 554, 563 (Iowa 2018).

       The district court found Clemons guilty under both alternatives, possession

with intent to deliver and conspiracy to possess with intent to deliver.5 When an

offense is based on alternative theories, an argument must be raised challenging

the sufficiency of the evidence on each theory. See State v. Schlitter, 881 N.W.2d

380, 390 (Iowa 2016). In order to successfully show his conviction is not supported

by substantial evidence, Clemons would need to show there was insufficient

evidence in the record to support either theory. However, Clemons has only

challenged the sufficiency of the evidence on one theory—possession of marijuana


4  In order to show a conspiracy to possess marijuana with intent to deliver, the
State was required to show (1) Clemons and Hughes agreed to possess marijuana
with intent to deliver; (2) they entered into the agreement with the intent to promote
or facilitate the possession of marijuana with intent to deliver; (3) Clemons or
Hughes committed an overt act to accomplish the offense; and (4) neither of them
was a law enforcement agent or assisting a law enforcement agent when the
conspiracy began. See State v. Corsi, 686 N.W.2d 215, 219 (Iowa 2004) (citing
State v. Speicher, 625 N.W.2d 738, 741 (Iowa 2001)).
5 On the record, the district court found the State had proved beyond a reasonable

doubt that the defendant constructively possessed marijuana with the intent to
distribute it and conspired to possess with intent to distribute marijuana. Following
its findings of fact, the court stated, “Accordingly, the Court finds the defendant
guilty of Possession with Intent to Distribute Marijuana, as charged in Count I.”
The written verdict form corrected the oral conviction, reciting that defendant was
convicted as charged in Count I, possession or conspiracy to possess a controlled
substance, marijuana, with intent to deliver, as an habitual offender.
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with intent to deliver. In his appellate brief, he does not raise an argument that

there is insufficient evidence to support his conviction on the alternative ground of

conspiracy.

       By failing to challenge the sufficiency of the evidence to support his

conviction under the theory he conspired to possess marijuana with intent to

deliver, Clemons has waived this issue on appeal.           See Iowa R. App. P.

6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be deemed

waiver of that issue.”); State v. Childs, 898 N.W.2d 177, 191 (Iowa 2017) (“The

waiver doctrine, expressed in our rules of appellate procedure, similarly advances

interests of judicial economy by limiting our review to issues actually argued on

appeal.”). We determine Clemons’s conviction under section 124.401(1)(d) may

be affirmed on the ground he conspired to possess marijuana with intent to deliver,

which he has not challenged on appeal.

       B.     Because we affirm the conviction on the alternate theory of

conspiring to possess marijuana with the intent to deliver, we need go no further.

However, we take the opportunity to address the conviction under the alternate

theory of possession with intent to deliver. Actual possession occurs when the

controlled substance is found on the defendant’s person. State v. Atkinson, 620

N.W.2d 1, 2 (Iowa 2000). Constructive possession occurs when the defendant

has knowledge of the presence of the controlled substance and has the authority

or right to maintain control of it. State v. Webb, 648 N.W.2d 72, 81 (Iowa 2002).

It is undisputed here that the defendant did not have actual possession of the

marijuana because the officer did not find the controlled substance on his person.

We are left with whether the defendant had constructive possession. On the facts
                                         7


on this case, we find there is sufficient evidence in the record to support Clemons’s

conviction on the ground of possession of marijuana with intent to deliver.

       “The existence of constructive possession turns on the peculiar facts of

each case.” State v. Reed, 875 N.W.2d 693, 705 (Iowa 2016). When the premises

in question are jointly occupied, the location of the controlled substance alone is

not sufficient to show possession. State v. Thomas, 847 N.W.2d 438, 443 (Iowa

2014). In such a case, we additionally consider:

       (1) incriminating statements made by a person; (2) incriminating
       actions of the person upon the police’s discovery of a controlled
       substance among or near the person’s personal belongings; (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. “These factors are not exclusive, however, and merely act as a guide.” Id.

       When the “premises” involve a motor vehicle, a court may consider these

additional factors: (1) whether the contraband was in plain view; (2) whether it was

with the accused’s personal effects; (3) whether it was found on the same side of

the car seat as the accused or immediately next to him; (4) whether the accused

was the owner of the vehicle; and (5) whether there was suspicious activity by the

accused. State v. Kemp, 688 N.W.2d 785, 789 (Iowa 2004) (citing Atkinson, 620

N.W.2d at 4). All of these factors are only a guide in determining whether the State

has established constructive possession. Id. And “[e]ven if some of these facts

are present, we are still required to determine whether all of the facts and

circumstances . . . allow a reasonable inference that the defendant knew of the

controlled substance presence and had control and dominion over [it].” Id. (ellipsis

in original) (citation omitted); see also State v. Reeves, 209 N.W.2d 18, 22 (Iowa
                                        8


1973) (“Knowledge of the narcotic character . . . of the drug, as well as of their

presence . . . may be shown by the conduct, behavior and declarations of the

accused.”).

      Constructive possession cannot rest on mere proximity to the controlled

substance. State v. Cashen, 666 N.W.2d 566, 572 (Iowa 2003); see also Atkinson,

620 N.W.2d at 3–4. Moreover, furtive movements alone cannot support a finding

of constructive possession. Atkinson, 620 N.W.2d at 4. In addition, the right to

maintain control is something more than the “raw physical ability” to exercise

control over the controlled substance. State v. Bash, 670 N.W.2d 135, 139 (Iowa

2003). Rather, the accused must have “some proprietary interest or an immediate

right to control or reduce the controlled substance to the [accused’s] possession.”

Id.

      The marijuana was within close reach of Clemons. The baggies were in a

location next to Clemons. Hughes testified that before the vehicle was stopped,

the marijuana was in the armrest of the vehicle, which was between Hughes and

Clemons. It was equally accessible to the driver and the passenger. The plastic

baggies with the corners torn off were in the front passenger door, immediately

adjacent to where Clemons was sitting in the vehicle. Because his seat was

reclined back so far, Clemons had access to the digital scale with marijuana

residue and the gallon-size bag with marijuana residue, which were approximately

a foot and a half away from Clemons. At the scene, Clemons told an officer he

owned the digital scale. Furthermore, the amount of cash held by Clemons,

located in separate bundles, could be associated with the sale of a controlled

substance. Although Hughes claimed ownership of the marijuana, she was unable
                                           9


to indicate the amount of marijuana in the bag, but she claimed to have purchased

such that same day.

       Considering the evidence in the light most favorable to the State, we

determine there was substantial evidence in the record to support Clemons’s

conviction for possession of a controlled substance with intent to deliver and to

allow a reasonable inference that the defendant knew of the controlled substance’s

presence and had control and dominion over it. “Evidence is 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. Mathias, 936 N.W.2d

222, 226 (Iowa 2019) (citation omitted).

       III.   Ineffective Assistance of Counsel

       Clemons claims he received ineffective assistance because defense

counsel did not file a motion to suppress.6 He asserts defense counsel should

have argued the search and seizure of the cash in his pocket was unconstitutional

under the federal and Iowa Constitutions. He claims the evidence obtained from

the search should have been suppressed. Clemons also contends he is entitled

to relief under the federal plain error doctrine.

       We conduct a de novo review of claims of ineffective assistance of counsel.

State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of

ineffective assistance of counsel, a defendant must prove: (1) counsel failed to


6 Iowa Code section 814.7 (2020), as amended, removes a defendant’s ability to
pursue a claim of ineffective assistance of counsel on direct appeal. This
amendment became effective on July 1, 2019. State v. Macke, 933 N.W.2d 226,
230 (Iowa 2019). The new amendment does not apply to cases appealed before
the effective date of the statute. Id. at 231. We find the recent statutory
amendment does not apply to this case.
                                        10

perform an essential duty and (2) prejudice resulted. Id. A defendant’s failure to

prove either element by a preponderance of the evidence is fatal to a claim of

ineffective assistance. See State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).

      The State asserts this issue should be preserved for postconviction-relief

proceedings. We normally preserve claims of ineffective assistance of counsel for

postconviction-relief proceedings. State v. Trane, 934 N.W.2d 447, 465 (Iowa

2019). We resolve claims on direct appeal only when the record is adequate.

State v. Haas, 930 N.W.2d 699, 703 (Iowa 2019).          By preserving claims of

ineffective assistance for postconviction proceedings, “an adequate record of the

claim can be developed.” State v. Harrison, 914 N.W.2d 178, 209 (Iowa 2018).

This gives defense counsel an opportunity to explain the actions taken in the case.

Trane, 934 N.W.2d at 465. “Normally, cases involving issues of trial strategy and

tactical decisions require postconviction proceedings to develop the record

adequately.” State v. Hopkins, 860 N.W.2d 550, 556 (Iowa 2015).

      The present record does not contain information concerning the

circumstances that led to a search of Clemons’s pockets. Corporal Koepke was

asked, “You eventually did a search of the defendant, is that correct?” and he

stated, “Correct.” Clemons testified, “I stood out, he searched me, he found the

money in my pocket.”

      There was no evidence concerning the basis for the decision to search

Clemons. The evidence does not show if Corporal Koepke was conducting a pat-

down search for weapons or if he had already decided to arrest Clemons and was

conducting a search incident to arrest. Furthermore, the record does not show

whether Clemons consented to the search. Additionally, defense counsel may
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have had strategic or tactical reasons for deciding not to file a motion to suppress.

“[A] lawyer is entitled to his day in court, especially when his professional

reputation is impugned.” See State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978).

       We determine Clemons’s claim of ineffective assistance of counsel should

be preserved for possible postconviction-relief proceedings because the record is

inadequate to address his claim in this direct appeal.

       IV.    Sentencing

       Clemons claims the district court abused its discretion by failing to

adequately disclose the reasons for his sentence.

       Under Iowa Rule of Criminal Procedure 2.23(3)(d), a court must “state on

the record its reason for selecting the particular sentence.” State v. Hill, 878

N.W.2d 269, 273 (Iowa 2016). “This requirement ensures defendants are well

aware of the consequences of their criminal actions.” State v. Thompson, 856

N.W.2d 915, 919 (Iowa 2014). “Most importantly, the sentence statement affords

our appellate courts the opportunity to review the discretion of the sentencing

court.” Id. The district court may satisfy this requirement either by stating its

reasons orally on the record or by including the reasons in its written sentencing

order. Id. “[A] ‘terse and succinct’ statement may be sufficient, ‘so long as the

brevity of the court’s statement does not prevent review of the exercise of the trial

court’s sentencing discretion.’” State v. Thacker, 862 N.W.2d 402, 408 (Iowa

2015) (citation omitted).

       The State requested that Clemons be incarcerated. The defendant asked

to be placed on probation. Clemons noted he was on probation at the time of the

offense but asked to be placed on probation again. The presentence investigation
                                          12


report (PSI) recommended that Clemons be incarcerated. During the sentencing

hearing the district court stated, “The reasons for the sentence are Mr. Clemons’s

criminal history, his previous problems on supervision, as well as the

recommendation of the PSI author in this case.” Clemons was sentenced to a term

of imprisonment not to exceed fifteen years, with a three-year mandatory minimum

before he would be eligible for parole.

       We conclude the district court adequately expressed the reasons for

Clemons’s sentence as required by rule 2.23(3)(d). The statement of reasons

given by the court is sufficient, as it “does not prevent review of the exercise of the

trial court’s sentencing discretion.” See id. (citation omitted).

       We affirm Clemons’s conviction and sentence.

       AFFIRMED.
