                   IN THE COURT OF APPEALS OF IOWA

                                      No. 16-1150
                                  Filed July 19, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAVID DWIGHT JACKSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Lawrence P.

McLellan, Judge.



      David Dwight Jackson appeals some of his convictions, alleging the State

submitted insufficient evidence. AFFIRMED.




      Christopher J. Foster of Foster Law Office, Iowa City, for appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.




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

       In 2016, David Dwight Jackson was charged with five counts:

(1) possession of a controlled substance (methamphetamine) with intent to

deliver, (2) possession of a controlled substance (cocaine base) with intent to

deliver, (3) failure to possess a tax stamp, (4) possession of a controlled

substance (heroin) second offense, and (5) possession of a controlled substance

(marijuana) second offense. Each of these charges was subject to an habitual-

offender enhancement. Following a jury trial, Jackson was found guilty of lesser-

included charges on the first (methamphetamine) and second (cocaine base)

counts, guilty of the third (tax stamp) and fifth (marijuana) counts, and not guilty

of the fourth (heroin) count.    Jackson appeals claiming the State submitted

insufficient evidence to support his conviction for possession of the cocaine base,

possession of the marijuana, and failure to possess a tax stamp for the

methamphetamine.

       “A jury verdict is binding upon an appellate court if it is supported by

substantial evidence.”    State v. Garr, 461 N.W.2d 171, 173 (Iowa 1990).

“Substantial evidence is evidence that could convince a rational factfinder that a

defendant is guilty beyond a reasonable doubt.” Id. “Direct and circumstantial

evidence are equally probative.” Id. “We review challenges to the sufficiency of

the evidence for the correction of errors at law.” State v. Lambert, 612 N.W.2d

810, 813 (Iowa 2000).

       When viewing the evidence in the light most favorable to the State, the

testimony at trial established the following. See Garr, 461 N.W.2d at 173 (“[W]e

view the evidence in the light most favorable to the State, ‘including all legitimate
                                         3


inferences and presumptions which may fairly and reasonably be deduced from

the evidence in the record.’” (citation omitted)). In February 2016, police officers

executed a search warrant on an apartment in Des Moines. When they knocked

on the door and no one responded, the officers forcibly entered and found two

persons in the apartment. They first found a female located in the living room,

whom one officer had seen entering the apartment shortly before the officers

made their entry.     The officers forcibly entered the only bathroom in the

apartment and found Jackson sitting clothed on the toilet, with the toilet seat

open and the toilet water running as if recently flushed, which one officer testified

led him to believe Jackson had been using it to dispose of evidence. The officers

then searched Jackson’s person and found a plastic bag with 6.97 grams of

methamphetamine and three hundred and three dollars in cash.

       The officers then searched the apartment’s bedroom, finding three bags

containing a total of 1.07 grams of methamphetamine, with one containing .83

grams, another .24 grams, and the third methamphetamine residue. The officers

also found eight cellular phones, a box of sandwich bags, a digital scale, a pill

grinder, a total of 5.99 grams of marijuana, and .25 grams of heroin found in a

shoe under the bed. On top of a dresser in the bedroom, the officers found a

prescription pill bottle with Jackson’s name on the label. The officers further

found men’s and women’s clothing in the bedroom.            In the living room, the

officers found approximately 1.33 grams of cocaine base, a small amount of

methamphetamine, drug pipes, a small marijuana joint, a blunt, some rolling

papers for marijuana, a digital scale, and a cell phone belonging to the female

occupant. They also found men’s clothing in the living room closet.
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          An officer also testified to his interview of Jackson.1           The officer said

Jackson admitted to selling crack cocaine and methamphetamine—and selling it

to support his own use—but denied selling heroin. The officer further testified

Jackson used certain drug-specific terminology, such as referring to certain drugs

as “pieces,” which the officer testified “is generally exclusive to crack cocaine,”

and discussed the price and weight at which he sold methamphetamine—for

instance, that he sold a quarter gram of methamphetamine for twenty-five dollars

and a gram of methamphetamine for one hundred dollars. Finally, the officer

testified Jackson admitted he had resided in the apartment for the last two

months. It is undisputed there was no drug tax stamp on the contraband.

          On    appeal,     Jackson     claims       “aside   from   the   6.97   grams   of

methamphetamine found on Jackson’s person, the State submitted insufficient

evidence to prove that he possessed any of the other contraband found in the

apartment.” “Possession may be actual or constructive.” State v. Reed, 875

N.W.2d 693, 705 (Iowa 2016) (footnote omitted).                 Here, apart from the 6.97

grams of methamphetamine, the State relies upon a theory of constructive

possession.        “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.’” Id. (quoting State v. Maxwell, 743

N.W.2d 185, 193 (Iowa 2008)). When drugs are found in a person’s exclusive

possession, constructive possession may be inferred. Id. When, as here, “the

premises are jointly occupied, additional proof is needed.” Id.



1
    A recording of the interview was provided but is difficult to hear.
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       There are several factors our court considers to determine whether a

defendant has possession of items when those items are discovered in a jointly

occupied place:

       (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 circumstance linking the person to the
       controlled substance.

Id. (quoting State v. Kern, 831 N.W.2d 149, 161 (Iowa 2013)).

       Here, testimony was provided that Jackson admitted to selling crack

cocaine and knew certain terminology used exclusively in reference to crack

cocaine.        There   was   also    testimony          Jackson   admitted   to    selling

methamphetamine in amounts generally consistent with those found in bags in

the bedroom of the apartment. An officer testified Jackson admitted he was

residing   in   the   apartment.2     The       police    found,   among other      items,

methamphetamine and marijuana in the only bedroom of the house where they

also found a prescription pill bottle with Jackson’s name on the label. There were

also additional items confirming Jackson resided in the apartment—such as the

men’s clothing found in the bedroom and the living room closet.                    Further,

Jackson locked himself in a bathroom when the police arrived and was found

dressed sitting on top of a toilet that had been flushed, which an officer testified

indicated Jackson may have been disposing of evidence. This conclusion by the

officers is supported by an admission Jackson made during a phone call while in

2
  There was no indication any other party was residing in the apartment. An officer
testified Jackson had told the officer “[h]is baby mama, as he described her, . . . had
initially rented the apartment. As [Jackson] described, she had moved out, and he paid
$500 rent for the residence.”
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jail, in which he stated he “got in the bathroom and dropped [an item] in the toilet

and flushed it [but] forgot one . . . bag . . . that was underneath [his] wallet.” The

female occupant, who had been in the apartment for less than twenty minutes

based   upon    pre-entry surveillance,       made   no   comparable    incriminating

movements. See State v. Thomas, 847 N.W.2d 438, 443 (Iowa 2014) (noting

two other occupants had not “offered any resistance or acted inappropriately in

their dealing with the officers”); State v. Henderson, 696 N.W.2d 5, 9 (Iowa 2005)

(noting one party’s acts implied guilty where the other’s did not). We conclude

there was sufficient evidence from which a factfinder could conclude Jackson

was in constructive possession of marijuana and cocaine base. See generally

Reed, 875 N.W.2d at 707-08 (discussing and contrasting cases addressing

constructive possession while finding the defendant was in constructive

possession of drugs). Further, we find there is sufficient evidence to support

Jackson was in constructive possession of more than seven grams of

methamphetamine, when taking into account the amounts found on Jackson’s

person (6.97 grams) and in the bedroom (1.07 grams), and thus affirm his

conviction for failure to possess a tax stamp. See Iowa Code §§ 453B.3 (2016)

(“A dealer shall not possess, distribute, or offer to sell a taxable substance unless

the tax imposed under this chapter has been paid as evidenced by a stamp,

label, or other official indicia permanently affixed to the taxable substance.”);

453B.12 (imposing civil and criminal penalties on persons who violate chapter

453B); see also Iowa Code § 453B.1 (defining a “[d]ealer” as “any person who

ships, transports, or imports into this state or acquires, purchases, possesses,

manufactures, or produces in this state” items including “[s]even or more grams
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of a taxable substance other than marijuana, but including a taxable substance

that is a mixture of marijuana and other taxable substances”).

      AFFIRMED.
