                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1091
                               Filed May 20, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRIAN MICHAEL CASE,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Carla T. Schemmel,

Judge.



      Defendant appeals his convictions, based upon his Alford pleas, for going

armed with intent and dominion or control of a firearm by a felon. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

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

General, John P. Sarcone, County Attorney, and Justin G. Allen and Shannon

Archer, Assistant County Attorneys, for appellee.



      Considered by Danilson, C.J., Doyle, J., and Sackett, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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SACKETT, S.J.

       Defendant Brian Case appeals his convictions, based upon his Alford1

pleas, for going armed with intent and dominion or control of a firearm by a felon.

Case has not shown he received ineffective assistance on the ground defense

counsel permitted him to enter the pleas without a sufficient factual basis in the

record. There was a factual basis for Case’s pleas. We affirm his convictions.

       I.      Background Facts & Proceedings

       On June 26, 2013, Kris Wilder, an animal control officer with the Animal

Rescue League, went to a home in Des Moines to investigate a report of a dog

bite by a pit bull. The minutes of evidence state:

       Just as Mr. Wilder was about to take custody of the dog he saw the
       defendant [Case] come running out of the home carrying a very
       large machete knife above his head and waving it in a threatening
       manner. The defendant chased at Mr. Wilder who was placed in
       fear and forced to retreat to his truck. The defendant did not stop
       chasing Mr. Wilder until he was inside the truck. At that time Mr.
       Wilder called the police.

Officers found Case, the pit bull, and the machete, which had a 1.5 foot serrated

blade, inside the home. Case was charged with going armed with intent, in

violation of Iowa Code section 708.8 (2013).

       On October 28, 2013, a vehicle driven by Case was stopped by officers

because it did not have license plates. The officers observed Case reach into his

waistband, as if to conceal something. Officers found a digital scale in Case’s

pocket. According to the minutes of evidence, the officers found a handgun in a



1
 Under the holding in North Carolina v. Alford, 400 U.S. 25, 35-36 (1970), a defendant
may waive the right to trial and authorize the court to treat him as if he were guilty, but
not expressly admit guilt.
                                          3



black duffel bag on the front passenger seat. Next to the firearm the officers

found a small plastic baggie containing .22 caliber bullets. Case was charged

with dominion or control of a firearm by a felon, in violation of section 724.26(1).

       Case entered Alford pleas to going armed with intent and dominion or

control of a firearm by a felon. The court found a factual basis for the charges

based upon the minutes of evidence. The court accepted the pleas. Case was

sentenced to a term of imprisonment not to exceed five years on each charge, to

be served concurrently.      He now appeals, claiming he received ineffective

assistance of counsel during the plea proceedings.2

       II.    Standard of Review

       We review claims of ineffective assistance of counsel de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, a defendant must show (1) the attorney failed to perform

an essential duty and (2) prejudice resulted to the extent it denied the defendant

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). A defendant has

the burden to show by a preponderance of the evidence counsel was ineffective.

See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).

       III.   Ineffective Assistance

       Case contends he received ineffective assistance because defense

counsel permitted him to enter Alford pleas to going armed with intent and

dominion or control of a firearm by a felon when there was not a sufficient factual



2
  During the same plea proceedings, Case pled guilty to possession of
methamphetamine with intent to deliver and possession of marijuana, third offense. He
does not appeal these convictions.
                                          4



basis in the record to support his pleas. “It is a responsibility of defense counsel

to ensure that a client does not plead guilty to a charge for which there is no

objective factual basis.” State v. Finney, 834 N.W.2d 46, 54 (Iowa 2013). The

court should not accept a guilty plea unless there is a factual basis for the plea,

including Alford pleas. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).

       “On a claim that a plea bargain is invalid because of a lack of accuracy on

the factual-basis issue, the entire record before the district court may be

examined.”    Finney, 834 N.W.2d at 62.         We consider whether there is an

objective factual basis in the entire record available to the court when it accepted

the plea. State v. Sutton, 853 N.W.2d 284, 286 (Iowa Ct. App. 2014). We may

consider (1) the prosecutor’s statements, (2) the defendant’s statements, (3) the

minutes of evidence, and (4) the presentence report, if it was available at the

time of the plea.      Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014).

Furthermore, we may take judicial notice of well-known facts. Id.

       “Our cases do not require that the district court have before it evidence

that the crime was committed beyond a reasonable doubt, but only that there be

a factual basis to support the charge.” Finney, 834 N.W.2d at 62. “[T]he record

does not need to show the totality of evidence necessary to support a guilty

conviction, but it need only demonstrate facts that support the offense.” State v.

Ortiz, 789 N.W.2d 761, 768 (Iowa 2010). The court “must only be satisfied that

the facts support the crime, ‘not necessarily that the defendant is guilty.’” State v.

Keene, 630 N.W.2d 579, 581 (Iowa 2001) (citation omitted).
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       A.     Case first contends there was not a sufficient factual basis for his

plea to dominion or control of a firearm by a felon. He asserts the record does

not support a finding he exercised dominion or control over the firearm. He

points out the vehicle he was driving did not belong to him and states there was

insufficient evidence linking him to the duffel bag that contained the firearm.

       Case was charged with violating section 724.26(1), which provides: “A

person who is convicted of a felony in a state or federal court . . . and who

knowingly has under the person’s dominion and control or possession, receives,

or transports or causes to be transported a firearm or offensive weapon is guilty

of a class ‘D’ felony.”    The statute requires knowing dominion and control,

possession, or receipt or transportation of a firearm. State v. Olsen, 848 N.W.2d

363, 373 (Iowa 2014).

       The element of “dominion and control” may be shown by constructive or

actual possession.      State v. Turner, 630 N.W.2d 601, 609 (Iowa 2001).

“Constructive possession exists when, although the contraband is not on one’s

person, he or she controls the contraband or has the right to control it.” Id.

“[T]he doctrine of constructive possession allows the defendant’s possession of

contraband to be inferred based on the location of the contraband and other

circumstances.” State v. Thomas, 847 N.W.2d 438, 443 (Iowa 2014).

       The minutes of evidence show officers stopped a white Chevrolet Monte

Carlo driven by Case. There were no passengers in the vehicle. A black duffel

bag was found in the front passenger seat of the vehicle. Inside the duffel bag

was a handgun and a plastic baggie containing five .22 caliber bullets. The
                                          6



firearm inside the black duffel bag in the front passenger seat would have been

easily accessible to Case, who was driving the vehicle. See State v. Maxwell,

743 N.W.2d 185, 194 (Iowa 2008) (noting defendant was the only person in the

vehicle and illegal drugs were found immediately next to him).

       Constructive possession, however, may not be based on proximity alone.

State v. Cashen, 666 N.W.2d 566, 672 (Iowa 2003). Additional evidence linking

Case to the firearm is the fact officers found a digital scale in Case’s right pocket.

Digital scales are associated with drug dealing.        See State v. Randle, 555

N.W.2d 666, 672 (Iowa 1996) (noting defendant had items associated with drug

sales, including a digital scale). Firearms are also associated with drug dealing.

See In re Matter of Rush, 448 N.W.2d 472, 478 (Iowa 1989) (noting the evidence

supported a finding a gun was an instrumentality of illegal drug trafficking).

       It is not necessary that there be evidence to show Case had dominion and

control of the firearm beyond a reasonable doubt. See Finney, 834 N.W.2d at

62. It is sufficient if the facts support the crime. Keene, 630 N.W.2d at 581. We

conclude there is sufficient factual support for Case’s plea in the minutes of

evidence. We determine Case has not shown he received ineffective assistance

because defense counsel permitted him to enter an Alford plea to dominion or

control of a firearm by a felon.

       B.     Case also claims he received ineffective assistance because

defense counsel permitted him to enter an Alford plea to going armed with intent

when there was not a sufficient factual basis for that plea.          Section 708.8

provides: “A person who goes armed with any dangerous weapon with the intent
                                        7



to use without justification such weapon against the person of another commits a

class ‘D’ felony.” Case asserts there is an insufficient factual basis to show he

intended to use a dangerous weapon against another person. He contends there

is no factual basis to show he intended to use the machete to cut or slash Wilder.

      A machete is a dangerous weapon. State v. Franklin, 368 N.W.2d 716,

719 (Iowa 1985). When a firearm is involved, the “intent to use” element of

section 708.8 means the intent to shoot another person, not merely frighten or

harass the person. State v. Slayton, 417 N.W.2d 432, 434 (Iowa 1987). There

must be proof the defendant was armed with the dangerous weapon and had the

specific intent to inflict serious injury. State v. Pearson, 547 N.W.2d 236, 241

(Iowa Ct. App. 1996). This intent “must be present at the time the accused arms

himself and goes forth to harm another.” State v. Matlock, 715 N.W.2d 1, 6 (Iowa

2006). Specific intent is seldom capable of direct proof and may be shown by

circumstantial evidence. State v. Walker, 574 N.W.2d 280, 289 (Iowa 1998).

      Case’s specific intent to harm Wilder with a dangerous weapon, a

machete, may be inferred from Case’s actions. The minutes of evidence show

Case ran towards Wilder, an animal control officer with the Animal Rescue

League, carrying a machete over his head and waving it at Wilder in a

threatening manner. The machete was two feet long and had a 1.5 foot serrated

blade. Case chased Wilder, who was forced to retreat to his truck. Case did not

stop chasing Wilder until Wilder was safely inside the truck. Wilder was placed in

fear by Case’s actions.
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      We determine there is a sufficient factual basis for Case’s Alford plea to

going armed with intent found in the minutes of evidence. Again, there is no

requirement to show Case was guilty beyond a reasonable doubt. See Finney,

834 N.W.2d at 62. It is sufficient if the facts support the crime. Keene, 630

N.W.2d at 581.    We conclude Case has not shown he received ineffective

assistance because defense counsel permitted him to enter an Alford plea to

going armed with intent, as there is an adequate factual basis for the plea found

in the minutes of evidence.

      We affirm Case’s convictions.

      AFFIRMED.
