                   IN THE COURT OF APPEALS OF IOWA

                             No. 3-1137 / 12-1908
                             Filed March 12, 2014
                            Amended July 16, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JASSIMEN N. DOBBINS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Richard G. Blane II,

Judge.



      Jassimen Dobbins appeals from her conviction following a jury trial for

delivery of a controlled substance and failure to possess a tax stamp.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, Patricia Reynolds, Assistant

Appellate Defender, and John D. Twillmann, Student Legal Intern, for appellant.

      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney

General, Sean Corpstein, Student Legal Intern, John P. Sarcone, County

Attorney, Stephan K. Bayens, Assistant County Attorney, for appellee.




      Heard by Potterfield, P.J., and Doyle and Bower, JJ.
                                       2


DOYLE, J.

       I. Background Facts and Proceedings.

       In November 2011, the State filed a trial information charging Jassimen

Dobbins with delivery of a class “C” controlled substance, MDMA, also known as

ecstasy, in violation of Iowa Code section 124.401(1)(c)(8) (Supp. 2011). She

was also charged with failure to possess a tax stamp, in violation of sections

453B.3 and .12 (2011). The minutes of testimony state that on June 14, 2011, a

Des Moines police officer utilized a confidential informant (CI) to make a

controlled purchase of purported MDMA from Dobbins.

       According to the minutes, the CI went to the “mutually agreed upon

location” to make the purchase from Dobbins, while officers surveilled the

location.   A surveilling officer observed a female adult matching Dobbins’s

description waiting in the area of the agreed-upon location, and the officer

observed the woman enter the front passenger seat of the CI’s vehicle when it

arrived. The CI and the woman had a short interaction, and then the woman

exited the vehicle.

       Officers met with the CI immediately thereafter, and the CI gave the

officers a plastic bag containing eleven multicolored tablets identified as MDMA

by the CI. The CI told the officers he observed Dobbins waiting for him to arrive

at the previously agreed-upon location, and she then got into his vehicle. The CI

stated he had a short conversation with Dobbins, and she then retrieved a plastic

bag containing purported MDMA and sold it to him for an agreed-upon price.

The CI stated Dobbins then got out of the vehicle and left the area. The CI was

subsequently shown a photograph of Dobbins, and he positively identified
                                         3


Dobbins as the individual from whom he purchased the MDMA. The minutes do

not detail whether the CI observed, or told the officers he observed, any specific

features of Dobbins’s appearance, such as hair color or tattoos.

       Later, the substance purchased by the CI was tested and determined to

be 1-benzylpiperazine (BZP), not MDMA. The State subsequently amended the

trial information substituting BZP for MDMA to conform to the evidence.1

       Dobbins was arrested in October 2011 and jailed in the Polk County Jail.

While in jail, she made a phone call to a friend. Their phone conversation was

recorded. During the call, she explained that someone she knew gave the CI her

number to purchase pills and “set her up.” She admitted in the call she made the

transaction, but she claimed it was not her “stuff”; rather, she was asked to take it

outside and serve the CI.

       In April 2012, the State filed notices of additional witnesses. The State

advised that an officer would testify concerning the content of Dobbins’s recorded

phone call, and that the CI would testify as to all observations he made of

Dobbins and to the content of any conversation he had with Dobbins in the

controlled transaction.

       The CI was deposed by Dobbins at some point prior to trial. Thereafter,

Dobbins requested the State to provide the CI’s address. Dobbins also filed a

subpoena duces tecum requesting the Des Moines Police Department provide

“[a]ny and all documents, reports, photographs, video, notes and any other

relevant documents relating to the investigation and/or arrest of [Dobbins].” In


       1
        Because BZP is also a class “C” controlled substance, the offense and the
manner of committing the offense remained the same.
                                         4


response, the State filed motions for a protective order and to quash the

subpoena.

       A hearing on the State’s motions was held. There, Dobbins explained she

needed the CI’s address to subpoena evidence that was “directly relevant to

[Dobbins’s] defense.”    Specifically, she wanted to obtain “phone numbers of

phones [the CI] was utilizing during the time in question for this offense” to

acquire phone records.      There was no further discussion as to how those

numbers were relevant to Dobbins’s charges.          The State resisted providing

Dobbins with the CI’s address in order to insulate the CI from potential threats

and intimidation. Additionally, the State noted it had already provided the CI to

Dobbins for a deposition.

       Following the hearing, the district court entered an order granting the

State’s motion for a protective order and quashing Dobbins’s subpoena duces

tecum. The court found Dobbins did not establish that the CI’s address was

necessary “for investigative purposes or to ensure service of a subpoena,” and it

concluded disclosure of the address, without any useful purpose, would put the

CI at substantial risk, citing Iowa Rule of Criminal Procedure 2.11(12)(c).

       A jury trial commenced in July 2012. The CI testified on behalf of the

State. He testified he learned from a friend of Dobbins’s that he could buy some

MDMA from her, and he got her phone number from the friend. He testified he

then called Dobbins to set up the buy, and she told him to come over.         He

described the buy. During cross-examination, the CI was questioned about a

tattoo he described at his deposition. The CI admitted he said the person from
                                           5


whom he purchased the drugs had a tattoo of “this bitch” or “his bitch” on her

thigh.

         Polk County Jail Sergeant Steve Courtney testified as to the procedures

for recording the calls of inmates, as well as the booking process when a person

is arrested. On cross-examination by Dobbins, Courtney was asked if the tattoos

of arrestees are recorded in any way by the jail. The State objected to the

question being outside the scope of its direct examination, and the court

sustained the objection.

         The court and counsel then met outside the presence of the jury to make a

record. Dobbins counsel explained:

         The purpose of the witness Sergeant Steve Courtney is because he
         can lay the proper foundation for the booking records at the jail that
         show [Dobbins] doesn’t have a tattoo as stated by the [CI].
                The alternative . . . is that Ms. Dobbins can stand up, and we
         can show the jury her upper thigh to show there’s no tattoo. And
         then I can photograph and submit those photographs into evidence.

The court was advised Dobbins was not planning on testifying at trial.            The

following exchange then occurred:

                [THE COURT]: Then how do you intend to have her expose
         herself? Isn’t that a form of testimony?
                [DOBBINS’S COUNSEL]: That was my concern, Your
         Honor, that somehow the State would view it testimonial in nature
         and that that would open the door.
                So then that’s when I pursued the alternative option of
         getting the booking records from the Polk County Jail because that
         will basically satisfy the same.
                [THE COURT]: Didn’t you take depositions in this case?
                [DOBBINS’S COUNSEL]: We did, Your Honor. I did not
         depose Steven Courtney.
                ....
                [THE COURT]: You’re saying that this witness just became
         known?
                                   6


        [DOBBINS’S COUNSEL]: Well, yes, Your Honor. I mean, I
did over the break learn that the booking photos would—they would
take photos of [Dobbins’s] tattoos.
        [THE COURT]: Did you ask [the CI] in his deposition about
that tattoo?
        [DOBBINS’S COUNSEL]: That was where I learned about
the tattoo, Your Honor.
        [THE COURT]: So you’ve known since May 22nd of 2012
about the tattoo?
        [DOBBINS’S COUNSEL]: Yes.
        [THE COURT]: [W]hen did you first learn that the jail may
have information?
        [DOBBINS’S COUNSEL]: Over the lunch hour, Your Honor.
        [THE COURT]: Why did you learn it over the lunch hour?
        [DOBBINS’S COUNSEL]: Because some other attorneys
that were in here provided that as an alternative for me; indicated
that there could be some—that it could be testimonial in nature if
Ms. Dobbins were to stand up and expose her legs to the jury.
        And, obviously, I don’t want to open the door to cross-
examination by [the prosecutor] if my client does not intend to
testify. So then they said, Hey, the jail would have booking photos,
you should try to obtain them. So that is what I did, Your Honor.
        ....
        [DOBBINS’S COUNSEL]: I guess I would like some
clarification, then, Your Honor. After speaking with [the prosecutor],
he indicates that Ms. Dobbins standing up and exposing her tattoo
he wouldn’t view testimonial in nature.
        ....
        Your Honor, I don’t have any objection to not doing it through
Mr. Courtney. I just want some clarification that that’s not going to
open up the door to cross-examine my client.
        I don’t believe it would because I don’t believe it’s testimonial
in nature. But I just want to be absolutely clear because I do not
want to open the door.
        [THE COURT]: When was this telephone—
        [THE PROSECUTOR]: Jail call.
        [THE COURT]: —call disclosed?
        [THE PROSECUTOR]: It was disclosed in, I would say,
December of 2011 or January of 2012.
        [THE COURT]: You’re saying there’s an identification issue
when [Dobbins]—I’ve listened to this CD, and she’s on the phone
talking about how she got set up and she went out and she’s the
one that did this.
        I’m having a little trouble understanding your theory of
defense when [Dobbins is] admitting in recorded evidence that she
did it and your defense is that she’s not the one. And then I could
                                         7


      see where you could say that there’s an identification issue at the
      deposition, but the State has her own admission.
              [DOBBINS’S COUNSEL]: Your Honor, and I can’t go back
      and recall what first alerted me that there might be a question with
      the identification, but it was just before the deposition.
              And I guess I don’t recall what made me think about that
      particular issue, but it was something that prompted something I
      read from one of the officers or heard or something. I don’t recall,
      Your Honor.
              But I did believe that the eyewitness identification might not
      be accurate
              ....
              [THE COURT]: At this point we’re in the State’s case. My
      ruling that it was beyond the scope of the State’s direct examination
      as to this witness stands. I believe it’s totally different. You want to
      use this witness to present defense testimony.
              At this point that ruling’s going to stand. We’re going to
      proceed with the State’s case in chief.

      The phone recording was later played for the jury. The jury ultimately

found Dobbins guilty as charged. She now appeals.

      II. Scope and Standards of Review.

      “We review evidentiary rulings for abuse of discretion.” State v. Huston,

825 N.W.2d 531, 537 (Iowa 2013). We will reverse the decision of the district

court only where it impacts the substantial rights of the complaining party. Iowa

R. Evid. 5.103(a); McClure v. Walgreen Co., 613 N.W.2d 225, 235 (Iowa 2000).

But when the evidentiary claim involves constitutional rights, such as ineffective

assistance of counsel, we review de novo. Osborn v. State, 573 N.W.2d 917,

920 (Iowa 1998). We review sufficiency of the evidence claims for correction of

errors at law. State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). Discovery

demands are reviewed for abuse of discretion. State v. Groscost, 355 N.W.2d

32, 33 (Iowa 1984).
                                         8


      III. Discussion.

      On appeal, Dobbins contends the district court erred (1) in concluding the

displaying of her tattoo was testimonial in nature; (2) in excluding the Polk

County Jail officer from testifying as a defense witness, and (3) in not disclosing

to her the CI’s address for subpoena purposes. Additionally, she argues her trial

attorney was ineffective in failing to raise a sufficiency-of-the-evidence claim

concerning the tax stamp violation, and she raises other claims pro se. We

address her arguments in turn.

      A. Evidentiary Issues.

      1. Tattoo Display.

      Dobbins advances several theories concerning her claim the district court

erred in concluding the display of her tattoo was testimonial in nature.        By

framing the issue as a violation of her Fifth Amendment right against self-

incrimination, she sidesteps the threshold questions of foundation and relevance.

She failed to offer a witness (not necessarily herself) to testify that she did not

have the tattoo as described by the CI on the date of the crime, nor did she deal

with the problems inherent in her proposed testimony from Officer Courtney, who

booked her into jail some four months after the date of the crime. Her argument

that foundation was laid by the CI when he testified she did have the tattoo on

the date of the crime is unconvincing.

      As to the issue whether displaying her legs to the jury would have opened

the door to her cross-examination in violation of her Fifth Amendment rights, she

cites numerous cases from around the country that have concluded otherwise.

See, e.g., United States v. Bay, 762 F.2d 1314, 1315 (9th Cir. 1984) (“If [the
                                          9


display of a defendant’s tattoo] can be compelled by the government when it is to

the government’s advantage, surely the defendant can make the same showing

without taking the stand, when such a showing is to his advantage.”); Whittington

v. State, 656 So.2d 1346, 1347 (Fla. Dist. Ct. App. 1995) (holding trial court erred

in ruling the defendant would be subject to cross-examination if he displayed his

tattoos); Kulick v. State, 614 So.2d 672, 673 (Fla. Dist. Ct. App. 1993) (“[T]rial

court erred because [a display of tattoos or scars is] nontestimonial . . . [and]

does not subject the defendant to cross examination.”); Pettit v. State, 612 So.2d

1381, 1382-83 (Fla. Dist. Ct. App. 1992) (“A display of the defendant’s forearms

would have been nontestimonial in nature and would not subject the defendant to

cross examination.”); State v. Martin, 519 So.2d 87, 91 (La. 1988) (“[T]rial judge

erred in holding that defendant would be subject to ‘limited’ cross-examination if

he chose to display his tattoos to the jury.      Such a display would not have

constituted testimony by the defendant.”); Com. v. Poggi, 761 N.E.2d 983, 985

(Mass. App. Ct. 2002) (“[W]e do not characterize the defendant’s proposed

display of the tattoos on his forearms as testimonial. No speaking or writing was

contemplated. The demonstration seems to us to be more akin to a display of

the defendant for the purpose of revealing or examining some physical

characteristic, such as height, weight, or other physical feature. This is permitted

routinely and is not viewed as testimonial or requiring an opportunity to cross-

examine.”); State v. Gallegos, 853 P.2d 160, 161 (N.M. Ct. App. 1993) (agreeing

with “[c]ourts in other jurisdictions . . . [concluding] that a tattoo display used to

identify an individual or rebut a witness’s identification is admissible as

demonstrative evidence.”). Although this issue has not yet been addressed in
                                        10


any Iowa appellate opinion and is well-briefed by the parties here, it must wait for

another day to be decided.

       Our courts have long followed the rule that “[e]rror . . . predicated upon a

ruling which admits or excludes evidence will not provide a defendant with a

basis for relief on appeal, unless a substantial right of the [defendant has been]

affected.”   See State v. Parker, 747 N.W.2d 196, 209 (Iowa 2008) (internal

quotations omitted); see also Iowa R. Evid. 5.103(a). Although “[w]e presume

the defendant’s rights have been prejudiced,” the State can affirmatively rebut

the presumption by establishing that there was overwhelming evidence of the

defendant’s guilt. State v. Howard, 825 N.W.2d 32, 42 (Iowa 2012).

       The State asserts that, even if the district court erroneously found display

of Dobbins’s tattoo was testimonial in nature, the error is harmless because there

is overwhelming evidence of her guilt. We agree.

       To establish Dobbins’s guilt of the delivery of a class “C” controlled

substance, the State had to prove, beyond a reasonable doubt:

             1. On or about June 14, 2011, [Dobbins] or someone she
       aided and abetted delivered a controlled substance.
             2. [Dobbins] knew the substance was a controlled
       substance.

See Iowa Code § 124.401(1)(c)(8).       To establish guilt on the violation-of-tax-

stamp charge, the State had to prove, beyond a reasonable doubt:

              1. On or about June 14, 2011, [Dobbins] or someone she
       aided and abetted knowingly possessed ten or more dosage units
       of a controlled substance.
              2. [Dobbins] knew that the substance possessed was a
       controlled substance.
              3. [Dobbins] possessed the substance and failed to affix a
       State of Iowa tax stamp, label or other official indicia to the
       controlled substance.
                                         11

See id. §§ 453B.3, .12.

      Here, the recording of the jail phone call made by Dobbins overwhelmingly

evidences her guilt. She admitted on the phone call she delivered pills to an

informant. The pills were found to be BZP, a class “C” controlled substance.

There was no tax stamp affixed. Any evidence concerning her tattoos—whether

it matched the CI’s deposition testimony or not—would not overcome her own

admissions.   Consequently, even assuming without deciding the district court

erred or abused its discretion in concluding the display of her tattoo was

testimonial in nature, the error is harmless in light of her own admissions.

Consequently, we affirm on this issue.

      2. Exclusion of Testimony of Polk County Jail Officer.

      Dobbins also argues the district court erred in excluding the testimony of

Sergeant Courtney concerning whether or not the Polk County Jail had

documented Dobbins’s tattoos at the time she was booked at the jail. Again,

even assuming, arguendo, the court erred or abused its discretion in excluding

the officer’s testimony, any evidence of her tattoo would not overcome her own

admissions. The error is harmless, and we affirm on this issue.

      3. CI’s Address.

      Dobbins contends the court abused its discretion in denying her disclosure

of the CI’s address. She argues:

              [Dobbins’s counsel] was unable to acquire the necessary
      phone records without [the CI’s] address. Without the phone
      records she was unable to confirm or deny that [the CI] contacted
      Dobbins via telephone, which limited her ability to impeach [the
      CI’s] testimony. Dobbins’s rights were injuriously affected when the
      court erroneously denied access to information that was vital and
      crucial to Dobbins’s defense.
                                        12


       Here, we must again conclude that if the court erred in denying her

request, the denial of disclosure of the address was harmless. Even assuming

she was able to impeach the CI’s testimony as to whether he called her to set up

the buy, she admitted she sold the pills to the informant. There is no reasonable

probability that, had she actually impeached the CI, she could have overcome

her own admission. If there was any error, it was harmless. We therefore affirm

on this issue.

       B. Ineffective Assistance of Counsel.

       Finally, Dobbins contends her trial counsel was ineffective for failing to

assert a sufficiency-of-the-evidence claim as to her tax-stamp violation in her

motion for acquittal. Generally, we do not resolve claims of ineffective assistance

of counsel on direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002).

We prefer to leave such claims for postconviction relief proceedings. State v.

Lopez, 633 N.W.2d 774, 784 (Iowa 2001). But when the record is adequate, as it

is here, we will resolve them. See State v. Coil, 264 N.W.2d 293, 296 (Iowa

1978); see also State v. Dudley, 766 N.W.2d 606, 620 (Iowa 2009).

       To prevail on her claims of ineffective assistance of counsel, Dobbins

must show (1) counsel failed to perform an essential duty and (2) prejudice

resulted. See State v. Lane, 726 N.W.2d 371, 393 (Iowa 2007). Improvident trial

strategy, miscalculated tactics, or mistakes in judgment do not necessarily

amount to ineffective assistance of counsel. Osborn v. State, 573 N.W.2d 917,

922 (Iowa 1998).     Furthermore, counsel has no duty to raise a meritless

objection. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). We evaluate the

totality of the relevant circumstances. Lane, 726 N.W.2d at 392.
                                         13


       Dobbins acknowledges that the State is not required to test the purported

drug to convict a person of a drug offense and a fact finder can rely on

circumstantial evidence to determine that a substance is an illegal drug. See

Brubaker, 805 N.W.2d at 172. She admits the State tested three of the eleven

pills, and all three were confirmed to be BZP.        However, she maintains the

State’s failure to test and confirm that all eleven pills were BZP left the jury “to

speculate on the identity of the pills and [rely] on conjecture to reach guilty plea.”

She therefore argues her attorney was ineffective in failing to challenge the

sufficiency of the evidence on the issue. We disagree.

       Here, an officer testified that MDMA is often sold in pill or tablet form in

multiple colors. The officer further testified that BZP is regularly sold as MDMA

because it is molecularly similar to MDMA and gives off similar side effects when

ingested. He also testified as to the lab report identifying the three tested tablets

to be BZP. The lab report notes the bag contained eleven round tablets in the

colors of green, blue, and purple, and it states that one of each colored tablet

was analyzed and determined to be BZP. Additionally, it reports that the tablets

not tested were each “consistent in appearance” with the tested tablet of the

same color.

       Based on this direct evidence, the jury could have concluded that the

untested tablets would have been consistent with the three tablets that were

tested—and therefore would have produced consistent test results for BZP in ten

dosage units, as required under Iowa Code section 435B.1(3)(d). We therefore

conclude that based on the direct evidence presented by the State, the jury could

have concluded that at least ten of the eleven pills were BZP. Consequently,
                                         14


Dobbins’s trial counsel had no duty to assert this claim. Dobbins has therefore

failed to establish her trial counsel was ineffective. We affirm as to this issue.

       IV. Conclusion.

       We have carefully considered all of the claims raised by counsel and by

Dobbins pro se. Those not addressed specifically in this decision are either

disposed of by our resolution of other claims or are without merit. Accordingly,

we affirm Dobbins’s convictions and sentences.

       AFFIRMED.
