                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1480
                            Filed December 23, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TERRY DANIELS,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Black Hawk County, Kellyann M.

Lekar, Judge.



      A defendant appeals his conviction and sentence after a jury found him

guilty of possession with intent to deliver a controlled substance as a second

offender. AFFIRMED.



      Drew H. Kouris, Council Bluffs, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Jean C.

Pettinger, Assistant Attorneys General, for appellee.



      Heard by Danilson, C.J., and Mullins and McDonald, JJ.
                                         2



MULLINS, Judge.

       Terry Daniels appeals his convictions for possession, or conspiracy to

possess, more than fifty grams of cocaine base with intent to deliver and failure

to possess a drug tax stamp, in violation of Iowa Code sections 124.401(1)(a)(3)

and 453B.12 (2013).      He also admitted to being a second offender for the

purposes of the sentencing enhancement in section 124.411. On appeal, he

claims there was insufficient evidence to convict him of either offense due to the

lack of corroboration of his confession to the investigating officers. In addition,

Terry claims his counsel provided ineffective assistance in a number of respects

and the cumulative effect of these errors resulted in a fundamentally unfair trial.

Finally, he claims his sentence should be vacated and the case remanded for

resentencing because the court considered unproven offenses and his sentence

of ninety years is grossly disproportionate to his offense.

I. Background Facts and Proceedings.

       Waterloo police officers were investigating the distribution of crack

cocaine, and they received information that a quantity of the drug would be

arriving by bus from Chicago on January 6, 2013. Surveillance was set up in

several locations, including the bus terminal. Officers observed Derrick Daniels

get off the bus from Chicago with a black duffel bag. He entered a vehicle driven

by his cousin, Latasha Daniels. The car was subsequently pulled over, and

plastic bags containing approximately sixty-nine grams of crack cocaine were

located in the black duffle bag.
                                        3



      Officers also had two residential addresses under surveillance at the time.

Prior to Derrick arriving on the bus, police observed Latasha leave a home

located at 1223 Mulberry. Shortly after Derrick was picked up by Latasha at the

bus station, police observed the defendant, Terry Daniels, leave his residence at

868 Fowler along with his long-term girlfriend, Mary Frye, and a unknown male,

and drive in the direction of 1223 Mulberry. His vehicle was also stopped, and

officers returned to the Fowler address with Mary to execute a search warrant.

      At the Fowler residence, police located a receipt for a money transfer from

Mary to Derrick and a car rental agreement. One of the officers testified it is

common to find car rental agreements during narcotics investigations as drug

traffickers will use rental cars in order to conceal their identity from officers.

Traffickers will also often use the name and identity of one of their customers in

order to further conceal their identity. The car rental agreement found at the

Fowler residence listed the name of an individual that the officer knew to be a

crack-cocaine user.    Officers located a letter addressed to Latasha, Terry’s

daughter, with the Fowler address along with a letter addressed to Terry. The

officers also located a box of sandwich baggies in the kitchen and a receipt for a

money gram from Latasha.       A canine officer alerted to a nightstand in the

upstairs bedroom, though no narcotics were found.

      Officers also executed a search warrant at the Mulberry residence.

Officers found two digital scales, razor blades, and sandwich baggies, all

indicating drugs were weighed and packaged into individual units for resale in the

residence. A prescription pill bottle with Derrick’s name on it was located in a
                                         4



shoe in a closet. Mail containing Latasha’s name with the Mulberry residence

address and the Fowler address was also located in the Mulberry home.

       At the police station, Officer Nicholas Berry interviewed Terry, who told the

officer he had a source in Chicago supplying him with crack cocaine.1 Terry

admitted the crack cocaine Derrick and Latasha were caught with was the result

of an arrangement he had made with his source in Chicago. He told Officer

Berry he was paying $1300 per ounce and receiving two ounces at a time, three

times a month. Officer Berry testified that one ounce of crack cocaine is a little

more than 28 grams, making the total amount of crack cocaine seized that day

equal to approximately two and one-half ounces.          Officer Berry testified the

amount of cocaine base discovered in the vehicle was consistent with distribution

and not consistent with personal use. Another officer also testified Terry gave

the Mulberry address as his own when he was booked into jail.

       In his defense at trial, Terry called Derrick to testify. Derrick stated Terry

had nothing to do with the drugs found in his possession on January 6. While

Derrick testified he took full responsibility for the drugs, on cross-examination

Derrick also stated he was “shocked” when the police officer removed the drugs

from the duffle bag. While he was carrying the bag, he told police it did not

belong to him and pointed out in his testimony on cross-examination that the bag

contained clothing that was not his and contained Latasha’s wallet and

identification. However, he ultimately admitted to knowing the drugs were in the

duffle bag. He also admitted to owning the digital scales found during the search


1
 The recording system in the interview room where Officer Berry interviewed Terry
malfunctioned. Officer Berry’s testimony was the only evidence of Terry’s confession.
                                         5



of the Mulberry address. At the time of Terry’s trial, Derrick had already been

tried and convicted for possessing the cocaine base and was awaiting

sentencing.

       The jury found Terry guilty of possession of, or conspiracy to possess,

over fifty grams of cocaine base and failure to have a drug tax stamp. Terry

admitted to being a subsequent offender and was sentenced to ninety years in

jail with a one-third mandatory minimum. He now appeals his conviction and

sentence.

II. Scope and Standard of Review.

       Challenges to the sufficiency of corroboration to support a defendant’s

confession are reviewed for correction of errors at law. State v. Meyers, 799

N.W.2d 132, 138 (Iowa 2011).        We examine the evidence in the light most

favorable to the verdict to determine if there is substantial evidence in the record.

Id.   Evidence is substantial if it would convince a rational trier of fact the

defendant is guilty beyond a reasonable doubt. Id. Circumstantial and direct

evidence are equally probative, and we may draw all fair and reasonable

inferences from the evidence. Id.

       Because it implicates a defendant’s Sixth Amendment right to counsel, we

review ineffective-assistance-of-counsel claims de novo. State v. Lyman, 776

N.W.2d 865, 877 (Iowa 2010). Terry must prove by a preponderance of the

evidence counsel failed to perform an essential duty and he suffered prejudice as

a result.   See id.   “To prove counsel failed to perform an ‘essential duty,’ a

defendant must prove counsel’s performance was deficient, meaning trial
                                         6



counsel ‘made errors so serious that counsel was not functioning as the

“counsel” guaranteed the defendant by the Sixth Amendment.’”             Id. at 878

(citations omitted).   “To establish prejudice, a defendant must prove ‘a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.’” Id. (citations omitted). “If a claim

lacks one of the elements of an ineffective-assistance-of-counsel claim, it is not

necessary for us to address the other element.” State v. Hischke, 639 N.W.2d 6,

8 (Iowa 2002).

      Finally, Terry’s challenge that the court relied on unproven offenses in

reaching its sentencing decision is reviewed for correction of errors at law. State

v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). His claim that his sentence is

grossly disproportionate to his case implicates the Cruel and Unusual

Punishment Clause of the Eighth Amendment and article I, section 17 of the Iowa

Constitution, and is thus reviewed de novo. State v. Oliver, 812 N.W.2d 636, 639

(Iowa 2012).

III. Sufficiency of the Evidence—Corroboration.

      Terry’s first claim on appeal is that there is insufficient evidence to support

his conviction. While there was evidence he confessed his involvement to Officer

Berry, Terry claims there is no other evidence that would link him to the crime.

      As an initial matter, the State maintains Terry’s sufficiency claim was not

preserved for appellate review because counsel made an insufficient motion for

judgment of acquittal. See State v. Brubaker, 805 N.W.2d 164, 170 (Iowa 2011)

(“To preserve error on a claim of insufficient evidence for appellate review in a
                                         7



criminal case, the defendant must make a motion for judgment of acquittal at trial

that identifies the specific grounds raised on appeal.”). At the close of all the

evidence, defense counsel made a motion for judgment of acquittal, stating,

“Comes now, the defendant, Terry Daniels, by and through counsel, and would

state that a directed verdict should be handed down at this time because the

State’s case, even when taken in the light most beneficial to the State, does—

does not raise a jury question.”

       While the language used in the motion alone would be insufficient to

preserve error on a claim that Terry’s confession lacked corroboration, when we

view the State’s resistance to the motion along with the pretrial motions made in

this case, it is clear both parties and the court understood the grounds for the

motion. See State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005) (“[W]e recognize

an exception to the general error-preservation rule when the record indicates that

the grounds for a motion were obvious and understood by the trial court and

counsel.”). The State’s resistance asserted there was sufficient corroboration for

the confession, specifically outlining the corroborating evidence and citing to

case law to support its response. In addition, the corroboration of the confession

was the subject of a motion in limine before the start of the trial, which indicates

the court was alerted to the corroboration issue.      We therefore consider the

sufficiency claim made on appeal preserved for our review.

       Extrajudicial confessions of a defendant cannot result in a conviction

unless there is corroborating evidence of the crime charged.          Meyers, 799

N.W.2d at 139; see also Iowa R. Crim. P. 2.21(4) (“The confession of the
                                          8



defendant, unless made in open court, will not warrant a conviction, unless

accompanied with other proof that the defendant committed the offense.”).

Corroborating evidence is sufficient to support a conviction if it “tends to ‘confirm

some material fact connecting the defendant with the crime.’”           Meyers, 799

N.W.2d at 139 (citation omitted). “It is sufficient as long as it supports the content

of the confession and if, together with the confession, proves the elements of the

charge against the defendant beyond a reasonable doubt.”                   Id.   The

corroborating evidence can be either direct or circumstantial, and it does not

need to be strong or go to the whole of the case so long as it confirms some

material fact. Id. While the existence of corroborative evidence is for the court,

the sufficiency of the evidence is a question for the jury. State v. Polly, 657

N.W.2d 462, 467 (Iowa 2003).

       In claiming there is no corroboration to support his confession to police,

Terry points to the lack of physical evidence of drug distribution found at his

residence on Fowler and the lack of evidence connecting him to the scales and

baggies found at the Mulberry residence.         The corroboration necessary for

Terry’s confession comes not from the search warrants executed on the two

homes but from the details specified in the confession itself when compared to

the details surrounding the narcotics found in the black duffle bag. Terry stated

he had a source in Chicago that supplied him with crack cocaine. The crack

cocaine arrived on a bus from Chicago in a black duffle bag in the physical

possession of Terry’s nephew, who was picked up from the bus station by Terry’s

daughter. Terry stated his source provided him with two ounces of crack cocaine
                                         9



three times per month. The amount of crack cocaine found in the duffle bag was

approximately two and one-half ounces. Terry stated he paid $1300 per ounce,

which officers familiar with narcotics trafficking indicated was consistent with the

distribution, as opposed to street sale, cost of the drug. See id. (noting sufficient

corroboration existed to support the defendant’s confession where the details of

the crime as recounted by the defendant were identical to the details reported by

the victim); see also State v. Origer, 418 N.W.2d 368, 371 (Iowa Ct. App. 1987)

(stating sufficient corroboration existed to support defendant’s confession that he

shot the victim and the body would not be found for some time when the victim

had been shot and his body, located in an out-of-the-way ditch, was not found for

a month).

       Because sufficient corroboration exists to support Terry’s confession to

Officer Berry, we conclude the jury’s verdict is supported by substantial evidence.

See Meyers, 799 N.W.2d at 138.

IV. Ineffective Assistance of Counsel.

       Next, Terry claims his trial counsel was ineffective in a number of ways

requiring that he be granted a new trial. Specifically, he claims counsel failed (1)

to introduce into evidence his statements to police denying his involvement in the

conspiracy, (2) to object when a police officer testified as to what address Terry

gave upon being booked into jail, (3) to call Terry’s long-term girlfriend to testify

in his defense, (4) to move to suppress his confession based on a lack of

Miranda warnings, (5) to object when the court did not send the jury back to

deliberate when it appeared the jury did not have a unanimous verdict during the
                                         10



polling of the jury, (6) to object to improper rebuttal testimony that admitted his

prior bad acts, and (7) to request the court include a jury instruction regarding the

fact his confession was not recorded.         Normally, we preserve ineffective-

assistance claims for postconviction proceedings to allow the development of a

complete record and permit counsel to respond to the allegations.           State v.

Shanahan, 712 N.W.2d 121, 136 (Iowa 2006). However, where the appellate

record shows as a matter of law a defendant can either prevail or not prevail on

his ineffective-assistance claim, we will not preserve the issue but will address it

on appeal. Id.

       A. Statements Terry Made Denying Involvement.              In his first claim,

Terry asserts counsel was ineffective in not cross-examining the testifying

officers, specifically Officer Sidles, regarding a statement in Officer Sidles’s

report that Terry denied having anything to do with the sale and distribution of

crack cocaine and did not know anything about his daughter or nephew bringing

in the drug from Chicago. Because of the importance of his confession to the

State’s case, he claims he was prejudiced when the jury was not told he also

denied any involvement in the crime to police.

       In this case, Officer Berry testified a “couple of other investigators had

spoken to [Terry] for a little while. They hadn’t—they hadn’t obtained a lot of

information from him.” However, defense counsel did not inquire into what Terry

had told these other investigators.       Because our record is unclear what

information Terry provided to the other officers and whether this information

would have had an impact on the jury’s verdict, we preserve this claim for
                                           11



possible postconviction-relief proceedings. See State v. Johnson, 784 N.W.2d

192, 198 (Iowa 2010) (“If . . . the court determines the claim cannot be addressed

on appeal, the court must preserve it for a postconviction-relief proceeding,

regardless of the court’s view of the potential viability of the claim.”).

       B. Booking Address. Next, Terry claims his trial counsel should have

objected when a police officer testified that Terry gave the Mulberry address as

his home address when he was booked into jail. Terry claims counsel should

have objected to this testimony by the officer on either foundation or hearsay

grounds and should have impeached the officer with evidence in the record

indicating Terry resided at the Fowler address.

       Terry does not indicate what foundation objection should have been

made. He simply states in his brief that the testimony about what address Terry

gave at booking “may not be true” and there was no information about how the

officer came to know this information. See Carter v. Wiese Corp., 360 N.W.2d

122, 132 (Iowa Ct. App. 1984) (noting an objection that simply said the evidence

was “without a proper foundation” was inadequate as the objection must

specifically identify what aspect of the foundation is lacking). Terry also claims

this testimony was objectionable on hearsay grounds. But see Iowa Rs. Evid.

5.801(d)(2) (concluding an admission by a party opponent is outside the

definition of hearsay), 5.804(b)(3) (describing the statement-against-interest

hearsay exception).      Again, because we conclude the record on appeal is

inadequate to address this claim, we preserve it for possible postconviction-relief

proceedings. See Johnson, 784 N.W.2d at 198.
                                        12



       C. Terry’s Girlfriend. Terry also complains his trial counsel should have

called as a favorable witness his long-term girlfriend, Mary, to testify in his

defense. The minutes of testimony indicate Mary informed the officers she had

observed Terry in possession of crack cocaine when the couple lived in Chicago

years ago, but she had no knowledge about any current activities. On appeal,

Terry claims she could have been a sympathetic defense witness and supported

his claim of innocence. He also claims Mary may have been in the interrogation

room when Terry confessed to Officer Berry, and if that was the case, Mary may

have been able to shed light on exactly what Terry said.

       The defense only called one witness to testify—Derrick. The record does

not disclose the reason Mary was not called as a witness or what information she

could have provided. As the decision regarding what evidence to present to a

jury falls within the realm of defense strategy, we preserve this claim for possible

postconviction-relief proceedings. See State v. Ondayog, 722 N.W.2d 778, 786

(Iowa 2006) (“[P]ostconviction proceedings are often necessary to discern the

difference between improvident trial strategy and ineffective assistance.”).

       D. Miranda Warnings.       Terry asserts his counsel should have filed a

motion to suppress his confession because there was no indication in Officer

Berry’s report that he advised Terry of his Miranda rights before Terry made the

incriminating statements.     He also asserts counsel was ineffective in not

challenging whether his statement was voluntary or the result of promissory

leniency.   The minutes of testimony indicate Terry was given his Miranda

warnings by Officer Sidles on January 6 at 2:12 p.m. The details surrounding the
                                         13



Miranda warnings and Terry’s waiver of his rights prior to giving his incriminating

statement are not contained within our record on appeal, and thus, we determine

the record is not adequate for us to address this claim. We preserve it for

possible postconviction-relief proceedings.

       E.   Unanimous Verdict.       Next, Terry contends counsel should have

insisted the court send the jury back to deliberate when it became clear during

the polling of the jury that one juror had questions regarding the verdict. After the

guilty verdict was announced, defense counsel requested the jury be polled

pursuant to Iowa Rule of Criminal Procedure 2.22(5). Each member responded

in the affirmative when asked by the court, “Is this your true and correct verdict?”

except for one member who responded, “Yes, with questions.” After an off-the-

record discussion between the court and counsel, the court advised the jury that

their verdict needed to be unanimous and then polled the jury again. During the

second poll, the same juror stated, “It’s the same as I said before, yes, but with—

I need to clearly understand something though. That’s my—yes, but I—before—

from what I’m understanding—.”         The court then returned the jury to the

deliberation room except for this juror who the court directed to remain behind.

The court addressed the juror:

       [N]o matter how you personally came to that decision, the end
       result is the only thing that needs to be unanimous from our jury.
       So my question to you is, is the verdict that was rendered your
       verdict?
               [Juror]: Yes.
               The Court: All right.
               [Juror]: My question’s not something that’s outside of what
       was stated. It’s just about on that—it’s really a simple question
       because it says or. It says Possession or Conspiracy. Is that
       saying both, or are you saying one or the other?
                                               14



                 The Court: It can be either or.
                 [Juror]: Okay. That’s all—it was real simple. I just wanted to
          make sure, like, because I—I might say yes on one and not the
          other, so that’s—I—I wanted to be clear on—
                 The Court: All right.
                 [Juror]: —what that meant.
                 The Court: Your verdict is as is reflected on the verdict form?
          It doesn’t matter precisely the theory that it’s based on, but it is as
          reflected on the verdict form and as was read; is that correct?
                 [Juror]: Yes.
                 The Court: All right. Let’s return the—is everyone satisfied?
          [Prosecutor]?
                 [Prosecutor]: Yes, Your Honor.
                 The Court: [Defense Counsel]?
                 [Defense Counsel]: Yes, Your Honor.

The court then returned the rest of the jury to the courtroom, where the jury was

polled a third time, and the juror in question responded in the affirmative that it

was her true and correct verdict.

          Terry claims on appeal his counsel was ineffective in not insisting that the

court send the entire jury panel back to deliberate once it became clear a juror

had questions about the verdict. See Iowa R. Crim. P. 2.22(5) (“A party may

then require a poll asking each juror if it is the juror’s verdict.               If any juror

expresses disagreement on such poll or inquiry, the jury shall be sent out for

further deliberation . . . .”). He also claims that the proper procedure for a jury

question was not followed as provided in Iowa Rule of Criminal Procedure

2.19(5)(g).2



2
    This rule provides
                  After the jury has retired for deliberation, . . . if it desires to be
          informed on any point of law arising in the cause, it must require the
          officer to conduct it into court, and, upon its being brought in, the
          information required may be given, in the discretion of the trial court. . . .
          Where the court gives the jury additional instructions, this shall appear of
          record. The procedures described shall take place in the presence of
                                         15



       The State responds that the juror at issue did not indicate that she

disagreed with the verdict, as rule 2.22(5) requires, but only said she had a

question or that she needed to understand something clearly. The clarification

she sought, and the information the court provided her, was already part of the

jury instructions. Instruction No. 37 stated,

             Where two or more alternative theories are presented, or
       where two or more facts would produce the same result, the law
       does not require each juror to agree as to which theory or fact leads
       to his or her verdict. It is the verdict itself which must be
       unanimous, not the theory or facts upon which it is based.

The State maintains that counsel did not breach an essential duty because the

verdict was in fact unanimous and further deliberation was not required. The

State also maintains Terry cannot show the result of the trial would have been

different if counsel had urged the court to respond in a different manner.

       Because the juror at issue did not indicate disagreement regarding the

verdict but only sought to have an issue clarified and because the information

given to the juror by the court in response to the juror’s question was the same

information already contained in the instructions, we agree Terry has failed to

show either that counsel breached an essential duty or that the result of the

proceeding would have been different had counsel lodged an objection to the

action taken by the court. We therefore deny this ineffective-assistance claim.

       F. Rebuttal Testimony. For his next claim, Terry asserts counsel should

have objected to the rebuttal testimony offered by the State because it contained


       defendant and counsel for the defense and prosecution, unless such
       presence is waived.
Iowa R. Crim. P. 2.19(5)(g).
                                            16



evidence of his prior bad acts, which he claims is inadmissible. Specifically,

Terry claims counsel should have objected to the testimony of Officer Sidles, who

disclosed that he had observed a drug transaction occur at the Fowler residence

in December 2012.        Officer Sidles testified a person entered the residence

without crack cocaine and emerged a few minutes later with crack cocaine.

       Under Iowa Rule of Evidence 5.404(b): “Evidence of other crimes, wrongs,

or acts is not admissible to prove the character of a person in order to show that

the person acted in conformity therewith.” However, the rule goes on to state

evidence of other crimes could be admissible to prove “motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Iowa R. Evid. 5.404(b). Because counsel did not object to this evidence offered

at trial, we do not have a record from which we can evaluate whether one of the

exceptions to the prior bad acts prohibition applies or whether such evidence

would have been more probative than prejudicial. As a result, we preserve this

claim for possible postconviction relief.

       Terry further claims the State’s failure to put this information into the

minutes of testimony violated Iowa Rule of Criminal Procedure 2.19(2).3              As

Officer Sidles was called in rebuttal, the State had no obligation to disclose the

contents of his testimony in the minutes of evidence. See State v. Belken, 633


3
  This rule provides in part:
        The prosecuting attorney, in offering trial evidence in support of an
        indictment, shall not be permitted to introduce any witness the minutes of
        whose testimony was not presented with the indictment to the court; in
        the case of informations, a witness may testify in support thereof if the
        witness’s identity and a minute of the witness’s evidence has been given
        pursuant to these rules.
Iowa R. Crim. P. 2.19(2).
                                          17



N.W.2d 786, 795 (Iowa 2001) (“Rebuttal witnesses, however, are not required to

be disclosed by the State.”).     Thus, counsel was not ineffective for failing to

object to the testimony on this ground.

       G. Spoliation Instruction. Finally, Terry asserts counsel should have

requested the court give the jury an instruction that the failure of his confession to

be recorded could affect the weight and believability of the confession. Terry

maintains such an instruction was considered and approved in State v. Avila, No.

13-0134, 2014 WL 1495496, at *8–9 (Iowa Ct. App. Apr. 16, 2014). In Avila, the

court instructed the jury:

       In determining the weight and believability of the confession, you
       may consider:
              1. Defendant’s mental capacity and intelligence.
              2. Defendant’s mental and emotional state at the time it was
       made.
              3. Whether it was knowingly and intelligently made.
              4. Whether the Defendant understood his statement to be an
       admission.
              5. Whether the Defendant’s statement was recorded.
              6. Any other evidence relating to the confession.

2014 WL 1495496, at *9 (emphasis added). The Avila court determined this

instruction fairly stated the law as it applied to the case and the district court did

not abuse its discretion in not giving a different instruction regarding the failure to

record the confession. Id.

       The same instruction was given to the jury in this case except number 5

was not included among the list of factors to be considered by the jury. The

confession did have a critical part in this case, and there was extensive

discussion at trial about the lack of recording. However, we preserve the claim

for postconviction relief proceedings as we determine this record is inadequate to
                                         18



address whether counsel breached a duty or whether Terry suffered prejudice.

See State v. Fountain, 786 N.W.2d 260, 267 (Iowa 2010) (“Although trial counsel

failed to request the proper instruction, we are unable on this record to assess

whether the failure constituted ineffective assistance of counsel.”).

       H.   Cumulative and Structural Error.         Terry claims the multitude of

errors made by counsel together resulted in him not receiving a fair trial. He also

claims counsel committed a structural error mandating a new trial. Terry fails to

articulate what structural error counsel committed, and therefore, we reject that

claim. In addition, because we did not find any error in the claims we addressed,

and because we preserved the remaining claims for postconviction relief, we

need not address his cumulative error claim.

V. Sentencing.

       Terry’s last claim asserts he is entitled to a resentencing because the

court relied on unproven offenses in reaching its sentencing decision and his

sentence is grossly disproportionate to his crime.

       A. Unproven Offenses. We first address his claim that the court relied

on an unproven offense when determining the sentence; specifically, he asserts

that the sentencing court’s references to prior drug transactions were not proved

by the State and should not have been used for the purposes of sentencing.

       Sentencing courts may not consider an unproven or unprosecuted offense

when sentencing a defendant unless (1) the facts before the court show the

defendant committed the offense or (2) the defendant admits it. State v. Jose,

636 N.W.2d 38, 41 (Iowa 2001). When a sentence is challenged on the basis of
                                        19



improperly considered unproven criminal activity, “the issue presented is simply

one of the sufficiency of the record to establish the matters relied on.” State v.

Grandberry, 619 N.W.2d 399, 401 (Iowa 2000). “The standard of proof during

the sentencing stage is lower than the standard used during trial.” Id. But if the

court relies on any improper consideration, even if it is a secondary

consideration, resentencing is required. Id. We are not free to “speculate about

the weight the trial court mentally assigned to [the improper factors].” State v.

Messer, 306 N.W.2d 731, 733 (Iowa 1981).         However, “[t]here is no general

prohibition against considering other criminal activities by a defendant as factors

that bear on the sentence to be imposed.” State v. Longo, 608 N.W.2d 471, 474

(Iowa 2000).

      Prior to pronouncing sentence, the court explained the factors it

considered in fashioning a sentence:

              Mr. Daniels, in considering your sentence, I’ve thought about
      the following things:
              I’ve thought about the quantity of the drug involved, I have
      considered [the prosecutor’s] argument about the fact that in light of
      your prior conviction and in light of some of the other evidence that
      came in about bringing in drugs from Chicago on a regular basis—
      or I guess from other places or Chicago. What stands out in my
      mind is that this is not an isolated incident. I do believe with the
      quantity involved and the nature of how and—what was being
      distributed, that the distribution of those created a significant
      danger to our community. I do find also that the fact that you are
      the second offender, as we have previously noted and to which you
      pleaded guilty. I also make note of [the prosecutor’s] statements
      including reference to your statements and the Presentence
      Investigation Report, that essentially, the sale of drugs has been a
      business to you. It is not, again, something you’ve been wrapped
      up in as a user and selling to continue your own use, your own
      substance abuse issue. It does appear that it’s been something
      you’ve conducted as a business. And in my mind, that makes a
                                        20



       greater danger to the community, someone who’s literally out
       selling a controlled substance as a business venture.
               I have also taken into consideration your age and the
       arguments that have been made by your counsel.

       On appeal Terry argues that there was never any evidence of prior

transactions or any evidence the conspiracy extended beyond January 6, 2013,

except vague testimony about an incident in December 2012 that should never

have been received by the court. However, Terry admitted the on-going nature

of his activities in his confession to Officer Berry and this confession was

supported by sufficient corroborating evidence. Terry admitted that his source

provided him with two ounces of crack cocaine, three times per month. There

was corroborating evidence fitting with the details in his confession. Moreover,

there was also testimony about “short-term traffic” outside both residences on

Mulberry and Fowler, which was consistent with the sale of narcotics. Therefore,

there are facts before the court showing Terry was involved in prior drug

transactions, and we conclude the court did not consider an unproven crime

during sentencing.

       B. Gross Disproportionality. Terry also argues that his sentence is

unconstitutional because it constituted cruel and unusual punishment under both

the federal and state constitutions. He contends his sentence, concurrent terms

of ninety years for the cocaine charge and five years for the drug-tax-stamp

violation, is grossly disproportionate to the crime he committed, and thus his

sentence, as applied to him, is unconstitutional.

       Both the Eighth Amendment to the United States Constitution and article I,

section 17 of the Iowa Constitution prohibit the infliction of cruel and unusual
                                       21



punishment. See Iowa Const. art. I, § 17 (“Excessive bail shall not be required;

excessive fines shall not be imposed, and cruel and unusual punishment shall

not be inflicted.”). Terry argues his sentence is cruel and unusual punishment

“because it is so excessively severe that it is disproportionate to the offense

charged.”   See State v. Robbins, 257 N.W.2d 63, 68 (Iowa 1977). When a

defendant challenges his sentence under both article 1, section 17 of the Iowa

Constitution and the Eighth Amendment of the United States Constitution, we

analyze the claim under the “more stringent gross-disproportionality review”

available under the Iowa Constitution. Oliver, 812 N.W.2d at 650.

      To determine whether Terry’s sentence is grossly disproportionate to his

crime, we need to apply the three-step test developed in Solem v. Helm, 463

U.S. 277, 296-300 (1983). “The first step in this analysis, sometimes referred to

as the threshold test, requires a reviewing court to determine whether a

defendant’s sentence leads to an inference of gross disproportionality.” Oliver,

812 N.W.2d at 647. “This preliminary test involves a balancing of the gravity of

the crime against the severity of the sentence.” Id. When the threshold test is

satisfied, a court then proceeds to steps two and three of the analysis. Id. These

steps require the court to engage in an intrajurisdictional analysis—“comparing

the challenged sentence to sentences for other crimes within the jurisdiction”—

and an interjurisdictional analysis—“comparing sentences in other jurisdictions

for the same or similar crimes.” Id. The first factor poses a high burden for

Terry. See Bruegger, 773 N.W.2d at 873 (“[I]t is a rare case in which a threshold
                                         22



comparison of the crime committed and the sentence imposed leads to an

inference of gross disproportionality.” (internal quotation marks omitted)).

       There are some general principles we must consider when reviewing a

defendant’s sentence to determine whether it is “grossly disproportionate” to the

crime committed.     Oliver, 812 N.W.2d at 650.      First, we defer to legislative

determinations of punishment and realize a sentence need not adhere to strict

proportionality to be constitutional.   See Bruegger, 773 N.W.2d at 872 (“[A]

reviewing court is not authorized to generally blue pencil criminal sentences to

advance judicial perceptions of fairness.”); see also Ewing v. California, 538 U.S.

11, 28 (2003) (emphasizing a reviewing court does not “sit as a ‘superlegislature’

to second-guess policy choices”). Second, although we impose a more rigorous

review under our state constitution than under its federal counterpart, it remains

rare that a sentence is so grossly disproportionate to the offense that it satisfies

the threshold inquiry under Solem. Oliver, 812 N.W.2d at 650 (citing Iowa cases

in which defendants failed to meet this preliminary standard). Third, we regard a

recidivist offender as more culpable and, therefore, more deserving of a longer

sentence than a first-time offender. Id. Fourth, the unique features of a case

may “converge to generate a high risk of potential gross disproportionality.” Id. at

651 (quoting Bruegger, 773 N.W.2d at 884).

       Keeping these principles in mind, we turn to the instant facts and consider

whether Terry’s sentence was grossly disproportionate to his offense of

possession of, or conspiracy to possess, over fifty grams of cocaine base and

failure to have a drug tax stamp under article 1, section 17 of the Iowa
                                        23



Constitution. We find Terry’s circumstances are not so unique as to “converge to

form a high risk of disproportionality.”     See Bruegger, 773 N.W.2d at 884.

Unique features to be considered include “a broadly framed crime, the

permissible use of preteen juvenile adjudications as prior convictions to enhance

the crime, and a dramatic sentence enhancement for repeat offenders.”           Id.

Here, Terry’s actions were not “inadvertently caught by a broadly written statute.”

See Oliver, 812 N.W.2d at 651. Rather, his conduct falls squarely within the

elements of possession of a controlled substance, to wit: more than 50 grams of

cocaine base with intent to distribute—a special class “B” felony—and failure to

have a drug tax stamp—a class “D” felony. See Iowa Code §§ 124.401(1)(a)(3),

453B.12. Although his sentence was enhanced based on a previous felony drug

offense, this enhancement was provided in Iowa Code section 124.411, and the

sentencing court imposed a 90-year term of incarceration instead of the

maximum sentence of 150 years. Further, Terry’s sentence was not based upon

any preteen juvenile adjudications.

      To fully address the proportionality question, we consider the totality of

circumstances, including the mitigating factors identified by Terry, as well as

other “potential factors that tend to aggravate the gravity of the offense and

magnify the consequences on [the victim].” Bruegger, 773 N.W.2d at 886. Here,

the district court captured the gravity of the offense when it noted the sale of

drugs has been a business for Terry, which created a significant danger to the

community. After considering the features of Terry’s case, we do not find his

sentence to be grossly disproportionate.      Because the punishment does not
                                        24



create an inference of gross disproportionality, we need not analyze the second

and third factors of Solem. Oliver, 812 N .W.2d at 653.

VI. Conclusion.

       Because we find adequate corroboration to support Terry’s confession to

the crimes, we conclude his conviction is supported by sufficient evidence. We

reject Terry’s ineffective-assistance claim that counsel should have requested the

court send the jury back to deliberate when one juror voiced questions about the

verdict during the polling of the jury. We conclude Terry has failed to show either

that counsel breached an essential duty or that he suffered prejudice.         We

likewise reject Terry’s claim that counsel should have objected when the

prosecution offered rebuttal evidence that was not previously disclosed in the

minutes of testimony. However, the record on appeal is inadequate to address

the remaining ineffective-assistance claims, and we preserve them for possible

postconviction-relief proceedings. Finally, we affirm his sentence, concluding the

court did not consider an unproven offense and his sentence was not grossly

disproportionate to this offense.

       AFFIRMED.
