                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0245
                               Filed June 15, 2016


HARVEY LEE RICKS III,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Dustria A. Relph,

Judge.



      Harvey Ricks appeals the district court’s denial of his postconviction-relief

application. AFFIRMED.




      Julia A. Ofenbakh of Ofenbakh Law Firm, P.L.L.C., Des Moines, for

appellant.

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

General, for appellee State.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       Harvey Ricks was found guilty of possession of a simulated controlled

substance with intent to deliver following the discovery of small rocks within a

cigarette package in his pocket. The cigarette package was not produced at trial.

       This court affirmed Ricks’ judgment and sentence. State v. Ricks, No. 11-

0594, 2012 WL 3026526 (Iowa Ct. App. July 25, 2012).                  Ricks filed a

postconviction-relief application alleging in part that his trial attorney was

ineffective in “failing to investigate” the missing cigarette package and in “failing

to ask for a . . . spoliation instruction.” The postconviction court denied the

application following a hearing. Ricks appealed.

       To succeed on his ineffective assistance of counsel claim, Ricks must

show that (1) his trial “counsel’s performance was deficient” and (2) this failure

resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). “If we

conclude a claimant has failed to establish either of these elements, we need not

address the remaining element.” Dempsey v. State, 860 N.W.2d 860, 868 (Iowa

2015). Our review is de novo. Id.

       Ricks asserts that “[a]t issue in this case is a mysterious, uninvestigated

disappearance of a key piece of evidence, a cigarette pack.” In fact, the cigarette

pack had little or no bearing on the case. According to defense counsel, Ricks

indicated “the cigarette package did not belong to him, that it had never been in

his left front pocket, that when the officer handcuffed him and placed him into the

police car, he felt it as he sat down on the seat.” Ricks’ trial strategy rested on

denying possession and ownership of the cigarette package. With this strategy

in mind, little would have been gained by production of the cigarette package.
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Notably, Ricks acknowledged his fingerprints would have been on the package

when he testified he handed it to the arresting officer after feeling it on the seat of

the police car.

       The cigarette package also would have done little to weaken the State’s

proof of the “intent to deliver” prong of the charge. For this prong, the State

relied on the fact that some of the rocks were placed in small tied-off plastic

bags, a common method of packaging drugs for individual sale. The cigarette

pack was simply the housing for these packages.

       Notwithstanding the marginal relevance of the cigarette pack, Ricks

contends his attorney should have “introduced the fact that the cigarette package

was missing and questioned the witnesses on its loss.” His attorney did so. He

asked the arresting officer, “Where is the cigarette pack now?”            The officer

responded, “I have no idea, sir.”      He also asked a State criminologist, “Did

anyone send a cigarette pack over for you to analyze at all?” She answered,

“Not that I am aware of in reference to this case.”

       Ricks also argues his attorney should have requested a spoliation

instruction.   See State v. Langlet, 283 N.W.2d 330, 333 (Iowa 1979) (“The

intentional destruction of evidence . . . is usually referred to as spoliation. When

it is established, the fact finder may draw the inference that the evidence

destroyed was unfavorable to the party responsible for its spoliation.”).          His

attorney cogently explained why such an instruction was unnecessary. Although

the attorney assumed the police would “bring the cigarette package” to trial, he

did “not recall any indication that the cigarette package itself had been

destroyed.” In any event, he “didn’t think that the actual package itself was that
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relevant . . . [b]ecause it was just the box that . . . what was alleged to be fake

crack cocaine . . . was in.” Later, he stated, “I didn’t think that tampering was an

issue in this case.” At the time of trial, he did not think “[t]here was enough to ask

for” an instruction. While he acknowledged in hindsight there could have been

enough to seek an instruction, he reiterated that the defense strategy was based

on denying ownership of the package.

       We conclude defense counsel did not breach an essential duty with

respect to his handling of cigarette package issues at trial. We affirm the district

court’s denial of Ricks’ postconviction-relief application.

       AFFIRMED.
