                 IN THE SUPREME COURT OF IOWA
                             No. 12–1491

                          Filed May 30, 2014


STATE OF IOWA,

      Appellee,

vs.

TREMAYNE LATOINE THOMAS,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, Thomas G.

Reidel, Judge.



      The State seeks further review of a court of appeals decision

holding that the State presented insufficient evidence to support the

defendant’s convictions for possession of cocaine and marijuana with

intent to deliver.   DECISION OF COURT OF APPEALS VACATED;
DISTRICT COURT JUDGMENT AND SENTENCE AFFIRMED.



      Lauren M. Phelps of Lauren M. Phelps, P.L.L.C., Davenport, for

appellant.



      Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson (until

withdrawal) and Benjamin M. Parrott, Assistant Attorneys General,

Des Moines, and Michael J. Walton, County Attorney, and Kelly G.

Cunningham, Assistant County Attorney, Davenport, for appellee.
                                       2

MANSFIELD, Justice.

         We are asked to decide today whether substantial evidence

supports the defendant’s convictions for possession of marijuana and

crack cocaine with intent to deliver. After police entered an apartment

occupied by several individuals, the defendant and one other person ran

into the bedroom. The defendant tried to hold the bedroom door shut to

prevent the police from entering. Eventually, an officer was able to force

open the door. As the defendant attempted to engage in misdirection,

police noticed the presence of sale packages of marijuana and crack

cocaine in the area where the defendant had been standing and holding

back the door. The defendant then gave a false name to the officers and

falsely claimed he had fled from them because he had an outstanding

warrant.     Meanwhile, the other person who had run into the bedroom

and the renter of the apartment both denied having anything to do with

the drugs. Based on these facts, the jury found the defendant guilty of

possession with intent to deliver, but the court of appeals reversed for

insufficient evidence. On further review, we find the evidence sufficient

to sustain a jury verdict of guilt and therefore reinstate the defendant’s

convictions.

         We also reject, separately, the defendant’s claim of Batson error in

jury selection. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90

L. Ed. 2d 69 (1986). We uphold the district court’s finding that the State

provided a race-neutral explanation for striking a potential alternate

juror.

         I. Background Facts and Proceedings.

         The following facts were presented to the jury.     The defendant

Tremayne Thomas and Marissa Ledbetter stood outside the Davenport
                                     3

apartment of Raymond Norvell late in the evening of March 1, 2012.

Norvell’s apartment was a ground-level, one-bedroom apartment.

      Officers from the Davenport Police Department, in a foot pursuit of

a suspect in the area, noticed Thomas and Ledbetter shouting and heard

loud noise coming from a window of Norvell’s apartment.      The officers

inquired about the activity, but Thomas and Ledbetter assured them

there was no problem.       Thomas and Ledbetter then moved inside the

apartment. One of the officers went to the door and was met by Norvell,

who identified himself as the resident of the apartment.          Norvell

reassured the officer everything was fine, and the officers continued in

pursuit of their suspect.

      A few minutes later, the officers returned to the area outside

Norvell’s apartment and again heard yelling from the window. One of the

officers approached the window.     As the officer watched, a man later

identified as Isaiah Henderson came into view, standing next to the

kitchen microwave in the background of the scene. The officer testified

he observed Henderson pull a marijuana blunt from his sweatshirt and

begin smoking it.

      Moments later, a man later identified as Brett Dennis approached

Norvell’s apartment. The officers followed Dennis toward the door and

noted the smell of marijuana smoke wafting from the apartment when

the door opened. The officers decided to attempt to seize the marijuana,

so they quickly knocked and announced themselves and entered the

apartment.

      The apartment had two rooms—the kitchen (with a small attached

bathroom) to the east and a back bedroom to the west. A single door

connected the kitchen and the bedroom.      The door was located in the
                                      4

northeast corner of the bedroom and swung into the bedroom toward the

north wall.

      As the police announced their presence and entered the front room

of the apartment in uniform, six persons were in that room. No one was

in the bedroom. Three of those persons—Norvell, Ledbetter, and Derek

Townsend—remained in the front room, sitting at the kitchen table.

Dennis, who had just walked in, eventually got up from the kitchen table

and left the residence. None of those four appeared to be interested in

fleeing or hiding.

      In contrast to those four, Henderson and the defendant Thomas

quickly retreated from the front room to the bedroom in back.

Henderson left his blunt behind and went immediately to the southwest

corner of the bedroom—i.e., the opposite end of the bedroom from where

the door was located.       Henderson then stayed in that corner of the

bedroom, away from the door and near a dresser.           Thomas followed

Henderson into the bedroom, closed the door, and tried to hold it shut.

      One of the police officers, Officer Sievert, pushed against the door

to the bedroom.       Despite Thomas’s efforts to hold the door shut, after

several seconds, the officer was able to shoulder the door open.       The

officer ordered Henderson (still in the southwest corner) and Thomas

(still in the northeast corner) to the ground.     Henderson immediately

complied. Thomas, however, remained standing and tried to engage the

officer in discussion.       The officer believed this was an effort at

“misdirection.”      In any event, the officer had to force Thomas to the

ground. The two men were then moved to the bed in the bedroom as the

officers searched the room.

      Behind the door that Thomas had been holding back and along the

north wall near the northeast corner were two rows of neatly placed
                                     5

women’s purses belonging to Norvell. On top of the purses, police found

a clear plastic baggie that contained four individually wrapped bags of

marijuana and four individually wrapped bags of crack cocaine.          The

marijuana bags were $5 units, and the crack cocaine bags were $50

rocks, all prepackaged for sale.

      The officers also found a phone and prescription medication

belonging to Henderson on a dresser near the corner of the room where

Henderson had initially been standing. Henderson explained that he had

previously entered the back bedroom to charge his cell phone and had

left his charging cell phone and a bottle of prescription pills on the

dresser in the southwest corner. When the police came in, he admitted

he had disposed of the blunt and headed back to that southwest area of

the bedroom where the dresser with his cell phone and pills was located.

      Thomas had no weapon or other contraband on his person. He did

have $120 cash. The other persons who had been in the apartment had

no money or contraband on their persons. In addition, Norvell denied

any knowledge of the crack cocaine found in his bedroom. Henderson

also denied any knowledge of the drugs found in the bedroom.

      The packaging of the marijuana and crack cocaine was crinkled, so

the police did not expect to find any fingerprints on the baggie or the

bags. Although they checked all items for fingerprints, no fingerprints

were subsequently detected.

      The officers located a marijuana blunt in front of the microwave

where Henderson had initially been standing when the officers observed

him light the blunt from outside the window.        A spoon with cocaine

residue on it and several small, clear plastic bags were also located at the

table where Norvell, Ledbetter, and Townsend were sitting.
                                      6

      After the police completed a search of the apartment, Thomas and

Henderson were asked for identification.        Henderson identified himself

correctly to the officers, but Thomas gave a false name and claimed he

could not remember his Social Security number. Thomas only gave his

actual name when he was moved to the squad car and told he was under

arrest for the evidence found in the bedroom and would be held as a

“John Doe” until he could be identified through fingerprints.

      Thomas claimed he had not been forthcoming about his name

because he had an outstanding warrant for his arrest.           However, the

police checked, and there was no warrant.          One of the officers later

testified that it is “pretty typical” for a suspect to claim that he or she ran

because of a warrant “so you won’t have to acknowledge the presence of

drugs.”

      Thomas was charged with possession with intent to deliver

marijuana, possession with intent to deliver crack cocaine, a drug tax

stamp violation, and interference with official acts.        See Iowa Code

§ 124.401(1)(c)(3) (2011) (possession of crack cocaine); id. § 124.401(1)(d)

(possession of marijuana); id. § 453B.3 (drug tax stamp violation); id.

§ 719.1(1) (interference with official acts).   The drug tax stamp charge

was eventually dropped.      Thomas entered a plea of not guilty to the

remaining charges in March 2012, and the case went to trial in July.

      At the close of the two-day trial, Thomas moved for a directed

verdict on the possession with intent to deliver charges, arguing there

was insufficient evidence he had possessed the drugs in question. The

district court denied the motion.     The jury found Thomas guilty of all

three charges. Thomas was sentenced to a period of imprisonment not to

exceed ten years for the crack cocaine charge, a period not to exceed five

years for the marijuana charge, and thirty days for the interference with
                                      7

official   acts   charge.   The   court   ordered   the   sentences   to   run

concurrently. Additionally, Thomas was fined $1750 and ordered to pay

court costs and attorney fees.

       Thomas appealed and urged again that there was insufficient

evidence to support the possession with intent to deliver charges. The

court of appeals agreed with Thomas and set aside those convictions.

We granted the State’s application for further review.

       II. Standard of Review.

       We have recently summarized our standard of review when

reviewing the sufficiency of evidence in criminal cases as follows:

       Sufficiency of evidence claims are reviewed for . . . correction
       of errors at law. In reviewing challenges to the sufficiency of
       evidence supporting a guilty verdict, courts consider all of
       the record evidence viewed in the light most favorable to the
       State, including all reasonable inferences that may be fairly
       drawn from the evidence. [W]e will uphold a verdict if
       substantial record evidence supports it. We will consider all
       the evidence presented, not just the inculpatory evidence.
       Evidence is considered substantial if, when viewed in the
       light most favorable to the State, it can convince a rational
       jury that the defendant is guilty beyond a reasonable doubt.
       Inherent in our standard of review of jury verdicts in
       criminal cases is the recognition that the jury [is] free to
       reject certain evidence, and credit other evidence.

State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012) (citations omitted)

(internal quotation marks omitted).

       III. Analysis.

       Iowa Code section 124.401 makes it unlawful for any person “to

manufacture, deliver, or possess with the intent to manufacture or

deliver, a controlled substance.” Iowa Code § 124.401(1). In order for

the State to establish possession of a controlled substance under this

statute, it had to prove Thomas “exercised dominion and control over the

contraband, had knowledge of the contraband’s presence, and had
                                     8

knowledge the material was a narcotic.” State v. Kern, 831 N.W.2d 149,

160 (Iowa 2013) (citation omitted) (internal quotation marks omitted).

      The State may show the defendant had either “actual possession”

or “constructive possession.” Id. at 160–61. At times, we have said that

actual possession requires the contraband to be found on the

defendant’s person. See id. at 161; State v. DeWitt, 811 N.W.2d 460, 474

(Iowa 2012).     Elsewhere, we have said that an individual has actual

possession when the contraband is found on his or her person or when

substantial evidence supports a finding it was on his or her person “at

one time.” State v. Vance, 790 N.W.2d 775, 784 (Iowa 2010). In other

words, “[a]ctual possession may be shown by direct or circumstantial

evidence.” Id.

      Under the Vance formulation, the distinction between actual

possession and constructive possession does not turn on whether a

defendant was apprehended with the contraband, but on whether there

is sufficient evidence that contraband was in his or her physical

possession at some point in time.        See id.; see also United States v.

Cantrell, 530 F.3d 684, 693 (8th Cir. 2008) (“A person who knowingly

has direct physical control over a thing, at a given time, is then in actual

possession of it.”); 8th Cir. Crim. Jury Instr. § 8.02 (rev. ed. 2013)

(setting forth the same language).       In Vance, the pseudoephedrine in

question was not found on Vance’s person at the time he was stopped,

but there was evidence that a pharmacy had sold pseudoephedrine to an

individual who had produced Vance’s identification card. 790 N.W.2d at

784. In addition, among other things, Vance was the only person in the

vehicle, the vehicle contained recently manufactured methamphetamine,

a receipt for the pseudoephedrine was on the front driver’s side of the

vehicle, and Vance had the same identification card on his person. Id.
                                     9

Based on this and other evidence, we found a jury “could reasonably

infer Vance had actual possession of the pseudoephedrine pills.” Id.

      In any event, the doctrine of constructive possession allows the

defendant’s possession of contraband to be inferred based on the

location of the contraband and other circumstances. Id. When drugs are

found on premises in the exclusive possession of the accused, that may

be enough to sustain a conviction. See Kern, 831 N.W.2d at 161; DeWitt,

811 N.W.2d at 474 (noting “possession may be inferred if the defendant

is in exclusive possession of the premises in which the contraband was

located”). But where the premises are jointly occupied, additional proof

is needed. See Kern, 831 N.W.2d at 161; DeWitt, 811 N.W.2d at 474–75.

We have identified the nature of the additional proof as follows:

      “(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 circumstances linking the person to the
      controlled substance.”

Kern, 831 N.W.2d at 161 (quoting State v. Maxwell, 743 N.W.2d 185, 194

(Iowa 2008)). These factors are not exclusive, however, and merely act as
a guide. See DeWitt, 811 N.W.2d at 475; Maxwell, 743 N.W.2d at 194.

      Thomas, of course, did not have exclusive access to the bedroom

where the drugs prepackaged for sale were found.         But we believe a

reasonable jury could conclude beyond a reasonable doubt that he had

been in possession of them and dropped them from his person shortly

before the police entered the room. To begin with, the drugs were found

where Thomas had been holding the door back from the police. Also, no

other logical explanation exists for Thomas’s behavior.        He had no

weapon and, despite his claim to the contrary, no outstanding warrants.
                                        10

To all appearances, what Thomas was doing when he held back the door

was buying time. Holding back the door would not have made sense if

Thomas’s goal had been to get away from the police, but it made perfect

sense if his goal was to get drugs off his person before the police got to

him.

       Of course, Norvell and Henderson also had connections to the

bedroom.     However, both of them denied any knowledge of the drugs.

Henderson repeated his denial on the stand at trial. Additionally, neither

Norvell nor Henderson offered any resistance or acted inappropriately in

their dealings with the officers. Furthermore, if Norvell were the culprit,

it would have been odd for him to leave drugs for sale sitting in plain

view on top of two rows of purses neatly resting on the floor of his

bedroom. 1   And Henderson had been in the other end of the bedroom

from Thomas and the drugs.

       In short, drugs were found in close proximity to the defendant; the

defendant had taken actions explainable most logically as an effort to get

the drugs off his person; and when apprehended, the defendant made

false statements and engaged in misdirection.           In addition, there was

evidence tending to exclude the other two individuals who were known to
have been in the bedroom from responsibility for the drugs.

       The facts of this case can be compared to our recent drug-

possession cases.      In Kern, the defendant lived in a house with her

boyfriend who maintained an extensive marijuana grow operation. 831

N.W.2d at 157, 160, 162.        Although the evidence readily permitted an

inference that the defendant knew about the marijuana, “there was no


       1As the prosecutor urged during closing argument, “Drug dealers do not leave

drugs laying out . . . .”
                                     11

evidence that Kern was more than an agreeable bystander to a vast

operation she permitted to take place.” Id. at 162. The record lacked

evidence pointing to the defendant’s “dominion and control over the

marijuana.”   Id.   As we pointed out, “Our long-standing rule does not

permit an inference of dominion and control based only on the presence

of drugs in a jointly occupied premises.” Id. Accordingly, we reversed

the defendant’s conviction for possession of marijuana. See id. Unlike in

Kern, several facts here—including the specific location where the drugs

were found and Thomas’s own actions—allow a jury to conclude that

Thomas personally exercised dominion and control over the drugs.

      In DeWitt, officers found marijuana in the trunk of a car the

defendant had been driving but did not own. 811 N.W.2d at 466, 474–

75. The uncontested evidence showed five other individuals had access

to the vehicle. Id. at 475. Nonetheless, we found the sum total of the

evidence sufficient to support the defendant’s conviction.       Id. at 477.

This evidence included the fact that the defendant was the most recent

driver of the car and drove it frequently, suspicious activity by the

defendant,    the   defendant’s   resistance   to   law   enforcement,   and

information provided by a confidential informant as to which no hearsay

objection had been made. Id. at 475–77. A number of the same factors

are present here.    The defendant was the person who had been most

recently in the spot where the drugs were found, his conduct prior to his

arrest was highly suspicious and makes sense only if his goal was to get

the drugs off of his person, and he offered resistance.

      Maxwell likewise involved drugs found in a vehicle. 743 N.W.2d at

189. In that case, Maxwell had been driving a vehicle that had an empty

pack of cigarettes between the two front seats. Id. The pack turned out

to contain crack cocaine. Id. A full pack of the same brand of cigarettes
                                     12

was found on Maxwell’s person. Id. Maxwell, however, did not own the

vehicle. Id. We nonetheless found that Maxwell was not entitled to a

new trial after he was convicted of possession.          Id. at 195.        We

emphasized that Maxwell was the driver and the only person in the car at

the time of the stop, that the pack containing the drugs was in Maxwell’s

plain view, that the drugs were found immediately next to Maxwell

between the two front seats, and that Maxwell continued to drive for one

hundred feet and then pulled into his driveway and got out of the car

when the officer activated his lights. Id. at 194. Again, some of the same

factors linking the defendant to the drugs are present here. In this case,

the drugs were found in the spot where the defendant had just been, and

his behavior was not merely mildly suspicious (as in Maxwell), but highly

indicative of an effort by the defendant to get the drugs off his person.

      In State v. Nitcher, the defendant had been staying at a house for a

few days because he had an argument with his girlfriend.           See 720

N.W.2d 547, 551 (Iowa 2006). Nitcher was not the owner of the house,

and several other individuals were also occupying the house. Id. at 550–

51. The house contained a meth lab. Id. at 550–52. In finding sufficient

evidence that Nitcher had constructively possessed methamphetamine,

we emphasized that his clothing contained an ether smell, and his

fingerprint was on a pie plate containing pseudoephedrine. Id. at 559.

The court also noted that the manufacturing process had occurred

recently. Id. As we explained, “This constitutes substantial evidence to

support the jury’s finding as to the possession link between Nitcher and

the methamphetamine when viewed in the context of the other evidence

in the case.” Id. Here, too, despite the fact that the apartment and the

bedroom were not in Thomas’s exclusive possession, there was

substantial evidence linking Thomas personally to the drugs.
                                      13

         State v. Carter was another vehicle case. See 696 N.W.2d 31, 34–

35 (Iowa 2005).      Carter, the driver of the vehicle, engaged in evasive

driving and made movements with his right hand when police tried to

initiate a traffic stop. Id. at 34. He also gave a false name when police

ultimately stopped the vehicle.         Id. at 35.     A baggie containing

individually wrapped bags of crack cocaine was found in the center

console of the car, the same area toward which Carter was seen moving

his hand before the stop. Id. Carter had only $6.09 on his person and

no cell phone, pager, or drug notes. Id. The passenger, on the other

hand, had also been riding in the front of the vehicle and was found with

$295.75 on his person. Id.

         Carter argued the evidence was insufficient to sustain his

conviction. Id. at 36. He pointed out that “the center console was close

and equally accessible to the driver and the passenger,” he was not the

owner of the vehicle, there were no fingerprints on the drug package, and

he had no drug paraphernalia on his person. Id. at 40. Yet we found the

evidence sufficient to convict Carter based on (1) his suspicious activity

before and after the stop; (2) the proximity of the controlled substances

to where he was rummaging while police were attempting to stop the

vehicle; (3) the presence of the baggie in a location where one would not

ordinarily leave drugs; and (4) the passenger’s denial that the drugs were

his, combined with the passenger’s cooperation with police.         Id.   We

concluded the fact finder “could reasonably infer that Carter was

exhibiting a proprietary interest in the controlled substances by

desperately trying to hide them while the police were pursuing him.” Id.

at 41.

         This case is in many respects a reprise of Carter. As in Carter, the

defendant here did not own and was not in exclusive possession of the
                                     14

place where the drugs were found. However, he was engaged in conduct

that appeared to be an effort to avoid being caught with contraband, he

then gave a false name to police when caught, and the contraband was

found where the defendant had been making his suspicious movements

just before he was apprehended (and it would have been otherwise odd

for contraband to be there). Furthermore, the other person who was in

the same room denied any connection to the contraband and had not

engaged in suspicious activity.      Thus, as in Carter, we believe the

evidence is sufficient to sustain the convictions.

      In State v. Henderson, we upheld the defendant’s convictions for

drug possession following law enforcement’s entry for eviction purposes

into an apartment she jointly occupied with a roommate.            See 696

N.W.2d 5, 8–10 (Iowa 2005). Various drugs and drug-related items were

found. Id. at 8. In our view, the defendant’s vehement reaction to the

entry “implied guilty knowledge,” whereas the roommate’s “obliging

manner” did not. Id. at 9. We acknowledged that “one could also explain

defendant’s response to the situation by the fact that she was the object

of a forcible eviction from her residence,” but we noted that the

roommate had denied the drugs were hers. Id. We believe the evidence

here linking Thomas personally to the drugs, if anything, exceeds the

evidence we remarked upon in Henderson.              Cf. State v. Kemp, 688

N.W.2d 785, 787, 790 (Iowa 2004) (finding sufficient evidence to sustain

a potential conviction when marijuana was found in a car that defendant

owned and had been the most recent person to drive, although defendant

was working on the vehicle with two other individuals and another

individual was inside the vehicle as a passenger when police arrived).

      By contrast, in State v. Bash, we had a Kern-type situation. See

670 N.W.2d 135 (Iowa 2003).         The husband had a box containing
                                    15

marijuana on his nightstand on his side of the bed. Id. at 136. The wife

testified she did not know what was in the box but admitted she knew

the box had contained marijuana in the past. Id. at 136–37. In finding

the evidence insufficient to sustain the wife’s conviction for possession,

we noted the absence of evidence that she had any right to control the

box or the marijuana in it. Id. at 138–39. In short, like Kern and unlike

here, the evidence indicated at most that the defendant knew of the

contraband, not that she had ever exercised control over it. See id.

      In State v. Cashen, we also reversed a possession conviction for

insufficient evidence.   See 666 N.W.2d 566, 568 (Iowa 2003).      In that

case, a car with six people was stopped by law enforcement. Id. Four

passengers were sitting in back, including the defendant Cashen who

had his girlfriend on his lap.    Id.    A baggie of marijuana was found

wedged into the rear seat on the side where the defendant and his

girlfriend had been seated. Id.    The girlfriend admitted the marijuana

was hers.   Id.   The defendant had a lighter and rolling papers on his

person; the girlfriend had rolling papers and a small baggie of marijuana

seeds in her pocket. Id. The defendant was not the owner of the car, nor

did he behave suspiciously when the car was stopped. Id. at 572. In

determining that the evidence was insufficient to allow a jury finding of

Cashen’s guilt, we emphasized that on the question of dominion and

control the State had only Cashen’s proximity to the drugs, and “[t]he

other three passengers riding in the back seat were just as close to the

drugs as was Cashen.” Id.

      This case stands in contrast to Cashen.        As we have already

discussed, the defendant here was the last person present in the actual

location where the drugs were found, the evidence supports an inference
                                      16

that the defendant dropped them there, the defendant’s conduct was

highly suspicious, and others denied responsibility for the drugs.

      Finally, State v. Webb involved another Kern scenario.         See 648

N.W.2d 72, 79–81 (Iowa 2002). Three adults shared an apartment. Id.

at 75.   Marijuana was found in the kitchen and the living room.            Id.

Webb was not in the apartment when the police arrived, nor did he

engage in suspicious conduct, nor were any of the relevant items found

near or among his belongings, nor was there any evidence as to when he

had last been in the apartment. Id. at 79–80. Webb did have $336 on

his person when he subsequently arrived at the apartment, but he said

he had received the money from his roommate. Id. at 80. In sum, we

assumed there was sufficient evidence that Webb knew about the

marijuana but found insufficient evidence that he had the ability to

maintain control over it. See id. at 81. This case, on the other hand,

puts the defendant most recently in the location where the marijuana

had been found, with considerable circumstantial evidence that he had

dropped it there.

      “Direct and circumstantial evidence are equally probative.” Iowa R.

App. P. 6.904(3)(p); State v. Schrier, 300 N.W.2d 305, 308 (Iowa 1981).

This rule applies to possession cases. See State v. Welch, 507 N.W.2d

580, 583 (Iowa 1993).      Considering the totality of the evidence in this

case, it is sufficient to raise a “fair inference of guilt” and generates “more

than suspicion, speculation, or conjecture.” DeWitt, 811 N.W.2d at 475.

As the foregoing review of our recent drug possession caselaw indicates,

the present case fits comfortably among our precedents where we have

found the evidence sufficient to sustain a finding of guilt.

      Thomas,       who   is   African-American,    also   urges    that   his

constitutional rights were violated when the State struck the only
                                        17

minority from a panel of three potential alternates in his case.               See

Batson, 476 U.S. at 96–98, 106 S. Ct. at 1723–24, 90 L. Ed. 2d at 87–89.

Jury selection was not reported.         However, the State told the district

court that it had exercised its peremptory challenge on this particular

juror because when asked about police officers’ credibility, “he was very

emphatic in shaking his head and told me that he didn’t believe their

credibility.”   The court overruled Thomas’s Batson challenge for the

following reasons:

              The Court acknowledges that [this potential alternate
       juror] did emphatically shake his head and said he had a
       problem with officer credibility. The Court wrote that down
       in its notes and circled that as an issue. The Court does
       think that’s a race-neutral reason for the strike, and the
       Court will allow the strike.

In any event, the alternate juror who was actually chosen was never

seated as a regular juror in the case.

       Giving deference to the trial court’s finding, we conclude there was

no Batson error because the State had a race-neutral reason for striking

this potential alternate juror. See State v. Griffin, 564 N.W.2d 370, 375–

76 (Iowa 1997) (rejecting a Batson challenge and noting that a reviewing

court ordinarily should give “great deference” to the trial court’s findings

in this area). We do not reach the State’s alternative argument that if a

Batson error occurred, it was harmless because the alternate juror was

never seated as a regular juror and did not participate in deliberations. 2




       2We    also do not reach any of Thomas’s claims of ineffective assistance of
counsel. Thomas may bring those claims in a postconviction relief proceeding. See
State v. Clay, 824 N.W.2d 488, 502 (Iowa 2012) (noting the defendant may bring
ineffective-assistance-of-counsel claims in a postconviction relief action).
                                   18

      IV. Conclusion.

      For the foregoing reasons, we affirm the district court’s judgment

and sentence and vacate the decision of the court of appeals.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT AND SENTENCE AFFIRMED.

      All justices concur except Hecht, Wiggins, and Appel, JJ., who

dissent.
                                       19

                                                   #12–1491, State v. Thomas

HECHT, Justice (dissenting).

        Police officers standing outside Raymond Norvell’s residence

observed Isaiah Henderson inside smoking marijuana. After knocking on

the door, announcing their presence and entering the residence, the

officers found several persons, drug paraphernalia near several of the

persons, and marijuana and crack cocaine. Tremayne Thomas, one of

the persons found inside the residence, who was neither a resident at the

apartment nor the person whom the officers had observed moments

earlier through the window smoking marijuana there, was convicted of

possession of the marijuana and crack cocaine with intent to deliver the

drugs.     In an opinion faithfully applying this court’s decisions on the

doctrine of constructive possession, the court of appeals concluded the

State    failed   to   produce   sufficient   evidence   supporting    Thomas’s

conviction. As I believe the court of appeals got it right, I respectfully

dissent.

        I begin with a brief overview of the applicable law.          Iowa Code

section 124.401 makes it unlawful “to manufacture, deliver, or possess

with the intent to manufacture or deliver, a controlled substance.” Iowa

Code § 124.401(1) (2011).           We have explained that to establish

possession of a controlled substance for purposes of this provision, the

State must prove an accused has exercised dominion and control over

the substance, had knowledge of its presence, and had knowledge of the

identity of the substance. State v. Maxwell, 743 N.W.2d 185, 193 (Iowa

2008).     In explicating the meaning of these requirements, we have

frequently maintained proof of access to a place where a substance is

found cannot by itself support a finding of unlawful possession.            See

State v. Cashen, 666 N.W.2d 566, 572 (Iowa 2003) (“Simply because a
                                            20

person can reach out and grasp something does not mean he or she has

control or dominion over the object.”); see also Maxwell, 743 N.W.2d at

194; State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003); State v. Webb, 648

N.W.2d 72, 77 (Iowa 2002) (quoting State v. Reeves, 209 N.W.2d 18, 22

(Iowa 1973)).

       Instead, we have often noted the State may employ either of two

formulations of proof in its attempt to establish possession.                    When a

substance is found on an accused’s person, we have described the

concept as “actual possession,” and noted the State may present direct

evidence of actual possession in making its case. Alternatively, we have

also explained the State need not establish possession by direct evidence

of actual possession, and instead, the State may present its case based

on a theory of “constructive possession.” 3 The doctrine of constructive

possession has been characterized as “a legal fiction used by courts to

find possession in situations where it does not in fact exist, but where

they nevertheless want an individual to acquire the legal status of

possessor.”      Charles H. Whitebread & Ronald Stevens, Constructive

Possession in Narcotics Cases: To Have and Have Not, 58 Va. L. Rev. 751,

761–62 (1972) [hereinafter Whitebread & Stevens].
       The concept of constructive possession is used to modestly extend

the concept of actual possession and include under its umbrella those

cases where the inference of possession at some time in the past is



       3I   note the State advanced its case at trial only in terms of “constructive
possession,” because, as the prosecutor explained there, where individuals “have the
ability to try and flee and throw that substance . . . so that it cannot be taken directly
off their person . . . this fact pattern is the norm and in most instances the officers deal
with constructive possession.” On appeal, the State contends more generally the jury
was free to find the real reason for Thomas’s elusive behavior was his actual possession
of the drugs on his person when the police arrived and when he entered the bedroom.
                                   21

exceptionally strong. See State v. Barber, 92 P.3d 633, 638 (N.M. 2004);

see also Reeves, 209 N.W.2d at 22 (expounding constructive possession

principles and explaining “if the accused does not have exclusive control

of the hiding place possession may be imputed if he has not abandoned

the narcotic and no other person has obtained possession”); 1 Wayne R.

LaFave, Substantive Criminal Law § 6.1(e), at 433 (2d ed. 2003)

(“Constructive possession . . . is simply a doctrine used to broaden the

application of possession-type crimes to situations in which actual

physical control cannot be directly proved . . . .”).       A showing of

constructive possession, we have said, requires the State to establish an

accused has knowledge of the presence of the substance and has the

authority or right to maintain control of the substance.    See Maxwell,

743 N.W.2d at 193.     In some cases, as where an accused exclusively

possesses the premises where a substance is discovered, an accused’s

authority or right to maintain control might be inferred.    Reeves, 209

N.W.2d at 23. Even when the inference is established in those cases,

however, we have cautioned the inference is rebuttable and not

conclusive. Id.

      We have cautioned even more strongly against the inference of

possession when an accused has not been in exclusive possession of the

premises, and we have mandated the accused’s knowledge of and ability

to control a substance must be established by proof beyond presence on

the premises or mere physical proximity to contraband found there. See

id.; see also State v. Kern, 831 N.W.2d 149, 161 (Iowa 2013). In these

“joint” possession or occupancy cases, we have explained the State must

typically present proof of immediate and exclusive possession of the place

where drugs are found on a premises, and additional proof such that we

can be satisfied the accused has possessed the substance for purposes of
                                           22

the statute. Reeves, 209 N.W.2d at 23. That additional proof may take

the form of proof of incriminating statements made by the accused,

incriminating actions upon the police’s discovery of the substance among

the accused’s belongings, fingerprints on the packaging containing the

substance, and any other circumstances establishing a possessory link

between the accused and the substance. Maxwell, 743 N.W.2d at 194.

Regardless whether the actual possession or constructive possession

formulation is advanced by the State, however, our purpose in setting

forth these formulations and evidentiary factors for consideration has

always been to ensure the State can establish, by something more than

speculation, that the accused has actually exercised possession of the

substance recovered beyond a reasonable doubt. 4                     See Reeves, 209


       4I note the articulation of possession principles in our recent decision in State v.
Vance, 790 N.W.2d 775, 784–85 (2010), is consistent with the principle I describe here,
and consistent with the purposes underlying the standards for proving possession we
have set forth in our prior decisions addressing these standards. In Vance, we
explained “actual possession” may be shown by direct or circumstantial evidence, and
concluded the defendant’s actual possession of a pharmacy receipt for pseudoephedrine
and additional circumstantial evidence were sufficient to support a finding that at one
time the defendant had actually exercised possession of the pseudoephedrine. See
Vance, 790 N.W.2d at 784. Vance departed from the very clear trend in our caselaw
and the decisions of other courts in applying the label of “actual possession” to a case
where the State presented evidence an accused may have exercised possession of a
substance at some point in the past. See, e.g., State v. Carter, 696 N.W.2d 31, 39–40
(Iowa 2005) (engaging in constructive possession analysis in case where substance was
found in the same place where driver had been moving his hand prior to stop, because
substance “was not found on his person”); Cashen, 666 N.W.2d at 568–69 (noting,
where marijuana was found wedged in car seat where accused had been sitting, “the
possession to be found, if any, must be constructive” because “the officers did not find
the marijuana on [defendant’s] person”); see also People v. Gallagher, 55 P.2d 889, 890
(Cal. Dist. Ct. App. 1936) (articulating constructive possession doctrine and applying it
where defendant directed officers to his lodging house and explained morphine could be
found in his mattress); Kern, 831 N.W.2d at 161 (“Because no marijuana was found on
Kern’s person, she was not in actual possession of the marijuana.”); State v. DeWitt, 811
N.W.2d 460, 474 (Iowa 2012); Whitebread & Stevens, 58 Va. L. Rev. at 755 (explaining
doctrine of constructive possession originated to address those cases where actual
possession at the time of arrest cannot be shown, but where the inference the
defendant had possession at one time is very strong). Our examination of the evidence
in Vance, however, and our resulting conclusion the State’s evidence was sufficient to
                                         23

N.W.2d at 21 (explaining unlawful possession must be established by

proof “the accused exercised dominion and control (i.e., possession) over

the contraband”).

       When reviewing findings of guilt in possession cases, we will

uphold the findings when substantial evidence supports the verdict

beyond a reasonable doubt. See Kern, 831 N.W.2d at 158. We review

the evidence presented at trial in the light most favorable to the State,

but we consider all the evidence in the record and not just the evidence

favoring the State. Id. We have often observed direct or circumstantial

evidence of possession may constitute substantial evidence for purposes

of our review.      See, e.g., Reeves, 209 N.W.2d at 21.              We have also

routinely said circumstantial evidence may often be equally as or even

more persuasive than direct evidence in any given case. See, e.g., State

v. Hearn, 797 N.W.2d 577, 580–81 & n.1 (Iowa 2011) (noting aiding and

abetting must be proven by same evidentiary standard regardless

___________________________________
establish the accused had at one time exercised possession of the substance functioned
to satisfy the same standard we have always set forth for determining whether the State
has established the statutory possession requirement. In other words, in Vance, as in
every possession case, we were confronted with and answered the question of whether
the State had presented sufficient evidence to establish, beyond a reasonable doubt,
that an accused had actually exercised possession of the substance in question. See
Vance, 790 N.W.2d at 784 (concluding evidence could establish accused possessed
pseudoephedrine based on evidence he purchased the pills from CVS, evidence of his
exclusive occupancy of vehicle in which pseudoephedrine, coffee grinder, and recently
manufactured methamphetamine were found, his incriminating statements, and the
paraphernalia found in his pockets); cf. Michael S. Deal, United States v. Walker:
Constructive Possession of Controlled Substances: Pushing the Limits of Exclusive
Control, 2 J. Pharmacy & L. 401, 405 n.43 (1994) (explaining, for purposes of
establishing possession, “[t]here must either be a requirement that exclusive control
over the area where the contraband is found must exist, or substantial evidence that
defendant possessed the drug on his person at some time in the past must exist” (citing
Whitebread & Stevens, 58 Va. L. Rev. at 766–74)). Undeterred by our longstanding
evidentiary threshold in drug possession cases, the majority, without significant
discussion on this point, dismisses out of hand every other applicable case in our
history of possession jurisprudence and applies the “Vance formulation” in a manner
lowering the bar for conviction.
                                    24

whether evidence is direct or circumstantial and finding substantial

evidence of defendant’s active participation in crime); State v. Bentley,

757 N.W.2d 257, 262–63 (Iowa 2008) (explaining, in kidnapping case,

State need not “affirmatively disprove” any hypothesis someone other

than accused removed victim where evidence indicated accused was only

occupant of house other than victim’s sleeping grandmother and younger

siblings); State v. Radeke, 444 N.W.2d 476, 479 (Iowa 1989) (noting

direct evidence and circumstantial evidence may be equally probative

and concluding evidence of defendant’s use of threats and force to induce

victim to unbutton her blouse was sufficient to allow jury to find

defendant had intent to commit sexual assault beyond a reasonable

doubt).

      We have also explained, however, that in possession cases where

the State fails to present evidence an accused possessed the proscribed

items at the time of arrest, and instead aims to prove possession at some

time prior, the evidence of past possession “ ‘must be entirely consistent

with defendant’s guilt, wholly inconsistent with any rational hypothesis

of his innocence, and so convincing as to exclude any reasonable doubt

that defendant was guilty of the offense charged.’ ” Reeves, 209 N.W.2d

at 21 (quoting State v. Schurman, 205 N.W.2d 732, 734 (Iowa 1973)); see

also State v. McDowell, 622 N.W.2d 305, 308 (Iowa 2001) (overturning

conviction in case where State presented evidence of defendant’s frequent

dominion and control of portions of another’s bedroom where gun was

found, but failed to present any evidence specifically linking defendant to

the gun); Whitebread & Stevens, 58 Va. L. Rev. at 763 (explaining even

evidence of “exclusive dominion and control” cannot justify a finding of

possession in the absence of “evidence establishing the fact that no one

else could have exercised control over the drugs”); cf. Webb, 648 N.W.2d
                                      25

at 81 (explaining evidence must have a “ ‘visible, plain, or necessary

connection’ ” with possession (quoting Black’s Law Dictionary 1295 (6th

ed. 1990))); State v. Atkinson, 620 N.W.2d 1, 5–6 (Iowa 2000) (examining

case involving “impermissible pyramiding of inferences” and overturning

conviction despite evidence of evasive movement and proximity to and

knowledge of substances, because any inference about defendant’s

exercise of control would have been “based on pure speculation” (quoting

State v. Snyder, 635 So.2d 1057, 1058 (Fla. Dist. Ct. App. 1994) (first

quote))).

      This demanding standard for proof of possession must be met, we

have explained, because we must ensure the evidence—whether direct or

circumstantial and whether characterized as actual or constructive—

generates something more than an inference of suspicion and instead

raises a real inference of guilt beyond a reasonable doubt. See Reeves,

209 N.W.2d at 21; see also State v. Vance, 790 N.W.2d 775, 783 (Iowa

2010) (noting evidence is substantial only if it would convince rational

trier of fact of guilt beyond a reasonable doubt); cf. United States v.

Hernandez, 301 F.3d 886, 893 (8th Cir. 2002) (“[T]here is a critical line

between suspicion of guilt and guilt beyond a reasonable doubt.”); Parker

v. Renico, 450 F. Supp. 2d 727, 735 (E.D. Mich. 2006) (“Here, while the

evidence may have lead to a ‘reasonable speculation’ that the [accused]

was in possession . . ., without stacking inferences there is insufficient

evidence to prove [possession] beyond a reasonable doubt . . . .”).

      This court’s decisions applying the court-created doctrine of

constructive   possession    reveal    a   cautious,   but   very     sound,

jurisprudential approach.    When the defendant in a drug case is not

found to have actual possession of contraband, we have held a conviction

cannot stand in the absence of proof beyond a reasonable doubt the
                                    26

defendant—rather    than   someone       else   who   is   present   with   the

defendant—actually possessed the contraband at some prior time. Thus,

when a residence or vehicle containing an illegal substance is occupied

by more than one person, we have required more than inference piled

upon inference amounting ultimately to mere speculation supporting a

finding that the defendant, rather than someone else present at the time,

exercised dominion and control over the illegal substance. In my view,

the majority’s conclusion the evidence was sufficient to support a finding

Thomas—rather than others present in Norvell’s apartment—possessed

the marijuana and cocaine found there sometime before the officers

arrived relies not on legitimate inference countenanced by our prior

caselaw, but instead on multiple inferences amounting to speculation.

      Approaching the matter in chronological order, I begin with what

the officers knew about possession of illegal drugs in this case before

they entered Norvell’s apartment.    One of the officers heard a female

voice—apparently that of Ledbetter, the only female in the apartment—

scolding another occupant for interacting with the police too cavalierly

and thereby risking arrest when the officers had stopped at the front

door minutes earlier. One could at least speculate that Ledbetter was

concerned about the prospect of being arrested because she knew illegal

drugs were present in Norvell’s apartment.       While peering through the

window, the officers had watched Henderson—not Thomas—smoking

marijuana while standing near the microwave in the kitchen of the

apartment.

      When the officers entered the apartment, they first encountered

Ledbetter, Norvell, and Derek Townsend, who were seated at the kitchen

table. On that table were a spoon with cocaine residue on it and several

small, empty, clear plastic bags.   Thus, before the officers entered the
                                        27

bedroom and arrested Thomas, they saw Henderson smoking marijuana

and passed by Norvell—the only resident of the apartment—and two

other persons seated around a table in close proximity to evidence that

cocaine, and perhaps other drugs, had been used there recently.

      There was no direct evidence linking Thomas to the marijuana and

cocaine found in Norvell’s bedroom atop one of Norvell’s purses located

there on the floor. No fingerprints were found on the sandwich bag, or

the individual plastic bags within it, and no other drug paraphernalia

was found in the room. There was no testimony from any witness who

claimed to have seen Thomas throw or place the small, clear plastic bags

in the location where they were found. The majority nonetheless finds

inferences from circumstantial evidence sufficient to support the

conviction. I will explore each of the circumstances in turn.

      As the officers entered the apartment, Henderson and Thomas

moved from the front room—a combined living and kitchen area in view

of the front door—into Norvell’s bedroom.          The evidence is undisputed

Henderson entered the bedroom first, followed by Thomas. The majority

concludes a reasonable juror could infer that Thomas had the marijuana

and cocaine on his person when the officers entered the apartment, and

he went into the bedroom to get rid of them.             I believe the majority’s

inference on this point is based on sheer speculation under the

circumstances presented here. Henderson, the only person the officers

had seen actually using marijuana, entered the bedroom before

Thomas. 5 He testified he had never seen Thomas holding the drugs. The

      5In   the subsequent search of the apartment, the officers located a phone and
prescription medication belonging to Henderson on a dresser in the bedroom. The
record further suggests Henderson had placed those items there at some time before
the officers arrived. Thus one could at least speculate that Henderson—whom the
officers had seen smoking marijuana—placed the marijuana and cocaine on Norvell’s
                                           28

other three occupants, who had been found within arm’s reach of small

plastic bags like those found in the bedroom, likewise gave no indication

they had ever seen Thomas holding or accessing the drugs. On these

facts, I conclude Henderson’s possession was equally consistent with the

State’s theory the drugs eventually discovered had been recently

discarded. 6 See Cashen, 666 N.W.2d at 572–73 (overturning conviction

in part because “[t]he other three passengers riding in the back seat were

just as close to the drugs as was Cashen”); Webb, 648 N.W.2d at 79

(“None of these items were found in a place that was immediately and

exclusively accessible to Webb and subject to his dominion and

control.”).

       Moreover, as I have noted, Norvell, the only resident of the

apartment, and two other persons were seated at the table where the

spoon containing cocaine residue and small plastic bags were located.

No one saw either Henderson or Thomas drop or throw the marijuana

and cocaine on Norvell’s purse as the two entered the bedroom.

Accordingly, I conclude Thomas’s movement into the bedroom behind

Henderson upon the officers’ entry raises no credible inference stronger

than speculation that Thomas more likely than any other person present

exercised dominion and control over the drugs at some prior time.

       The majority also suggests it is significant no other person in

Norvell’s apartment claimed knowledge or ownership of the marijuana

___________________________________
purse when he was in the bedroom earlier depositing his phone and medication on the
dresser. One could further speculate that the marijuana the officers had seen
Henderson smoking just minutes earlier had been just part of his stash, while the
remainder of it was located in Norvell’s bedroom.
       6I also note the officers testified that when questioned shortly after the discovery
of the drugs, Henderson indicated he knew nothing about their origin and gave no
indication he had seen Thomas discard them.
                                    29

and cocaine found in Norvell’s bedroom.      If I found this circumstance

supportive of an inference of Thomas’s guilt, perhaps I might also

consider significant the fact that Henderson explicitly testified he had no

reason to believe Thomas had controlled the drugs.           No comparable

testimony was advanced regarding the other occupants and their

connection to the contraband. I do not, however, find any part of this

evidentiary picture in which no other occupant claimed knowledge or

ownership surprising or significant, and I do not find it supportive of an

inference   even   remotely   approaching   reliability   tending   to   prove

Thomas—more likely than any other person present—exercised dominion

and control over the contraband.

      Nor do I share the majority’s willingness to countenance an

inference that Thomas must have hurriedly deposited the drugs on

Norvell’s purse upon entering the bedroom because drug dealers do not

normally leave their drugs in plain view. The suggested inference is truly

extraordinary in my experience, as the reported cases in which law

enforcement officers enter a residence and find drugs and paraphernalia

strewn about are legion. See, e.g., Mona Lynch, Crack Pipes and Policing:

A Case Study of Institutional Racism and Remedial Action in Cleveland, 33

Law & Pol’y 179, 195 (2011) (“[M]any such cases come in when police

enter a residence or hotel room and find the crack pipes, almost always

in plain view.” (Citation and internal quotation marks omitted.)); see also

I. Bennett Capers, Crime, Legitimacy, and Testilying, 83 Ind. L.J. 835,

869 (2008) (“To justify unlawfully entering an apartment where officers

believe narcotics or cash can be found, they pretend to have information

from an unidentified civilian informant or claim they saw the drugs in

plain view after responding to the premises on a radio run.” (quoting

Comm’n to Investigate Allegations of Police Corruption and the Anti-
                                           30

Corruption Procedures of the Police Dep’t, City of New York, Commission

Report 36 (1994))); Samuel R. Gross & Katherine Y. Barnes, Road Work:

Racial Profiling and Drug Interdiction on the Highway, 101 Mich. L. Rev.

651, 673 (2002) (“Typical bases for probable cause to search on I-95

include: drugs in plain view; the odor of burnt marijuana; and

occasionally a ‘K-9 alert’ by a police dog trained to detect illegal drugs.”).

In my view, only the speculation with the most doubtful support links

the drugs’ presence in plain view to Thomas with any more force than to

any other occupant of Norvell’s apartment. A more likely inference is the

drugs remained in plain view because the three people seated at the

kitchen table and Henderson were in the process of using them shortly

before the officers arrived, and there was no perceived reason compatible

with the intended near-term use to conceal them.

       After completing the search, the officer asked Thomas and

Henderson for identification. Henderson complied, but Thomas initially

gave a false name and birthdate and indicated he could not remember

his Social Security number. When a records check for the name came

up blank, the officers confronted Thomas, who identified himself and

explained he had behaved as he did because he believed there was an

outstanding out-of-state warrant for his arrest.                 Henderson testified

Thomas had expressed the same concern as the officers were entering

the apartment and they had moved to the bedroom. The officers later

determined Thomas had been mistaken and there was no outstanding

warrant. 7


        7The   officers’ testimony revealed two propositions about the potential
significance of Thomas’s explanation of his behavior as a result of his mistaken belief in
an outstanding arrest warrant: (1) individuals will often give fake names or engage in
misdirection, as Thomas did here, because they have outstanding warrants, and (2)
                                         31

       The majority also asserts a cognizable inference connecting

Thomas to the contraband arises from the fact that he closed the

bedroom door, sought to hold it shut against the officers’ attempt to

enter, and did not accurately identify himself when asked to do so. We

have previously noted evidence of suspicious behavior or furtive

movements by an accused may be an important factor in our

determination of whether the State has presented substantial evidence of

possession. See Cashen, 666 N.W.2d at 572 (noting lack of suspicious

behavior); Atkinson, 620 N.W.2d at 5–6 (considering evidence of alleged

furtive movements of a passenger in a motor vehicle). The State suggests

Thomas’s flight to the bedroom upon the officers’ entering the apartment,

his resistance at the bedroom door, and his relaying of a false name each

support an inference of guilt.

       We have long explained that for purposes of our analysis, we

typically consider as a single circumstance “the fact of an accused’s

flight, . . . resistance to arrest, . . . [and] assumption of a false name,” in

determining what inferences are to be drawn from this kind of conduct.

State v. Wimbush, 260 Iowa 1262, 1268, 150 N.W.2d 653, 656 (1967)

(quoting 2 Wigmore on Evidence § 276, at 111 (3d ed. 1940)). Moreover,

we have often emphasized the caution with which we must consider

“suspicious” behavior or evidence of flight. See, e.g., State v. Bone, 429

N.W.2d 123, 126–27 (Iowa 1988) (noting any marshaling instruction on

flight evidence “should include the caveat that there may be reasons for

the flight (or concealment) which are fully consistent with innocence”); cf.

Kentucky v. King, 563 U.S. __, __, 131 S. Ct. 1849, 1862, 179 L. Ed. 2d

___________________________________
individuals sometimes express fabricated beliefs in outstanding warrants as efforts to
misdirect officers’ attention from the trouble at hand.
                                     32

865, 881 (2011) (“[E]ven if an occupant chooses to open the door and

speak with the officers, the occupant need not allow the officers to enter

the premises and may refuse to answer any questions at any time.”);

Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d

229, 236 (1983) (explaining a police officer is free to approach a suspect

without grounds for a stop, but the suspect’s choice to walk away and

not listen to the officer “does not, without more, furnish those grounds”).

      We have expressed this caution in part because the value of

evidence of resistance or flight depends entirely on the degree of

confidence with which we can draw a chain of very specific, and often

improperly speculative, inferences from the evidence.          See, e.g., United

States v. Hankins, 931 F.2d 1256, 1261 (8th Cir. 1991).             That chain

would have us conclude an accused’s behavior actually constitutes flight

or resistance, conclude the flight or resistance clearly indicates the

accused’s   consciousness     of   some   kind   of   guilt,     conclude   the

consciousness of some kind of guilt clearly indicates the accused’s

consciousness of guilt of the crime eventually charged, and conclude

consciousness of guilt with respect to the crime eventually charged

clearly indicates the accused’s actual guilt of that crime. See id.; see also

Bone, 429 N.W.2d at 125 (explaining “departure from the area where a

crime has allegedly taken place is of marginal probative value” and

noting other unexplained circumstances must be taken in conjunction

with the departure to reasonably justify an inference of guilt); cf. Webb,

648 N.W.2d at 81 (“When the fact or facts proposed to be established as

a foundation from which indirect evidence may be drawn, by way of

inference, have not a visible, plain, or necessary connection with the

proposition eventually to be proved, such evidence is rejected for

‘remoteness.’ ” (quoting Black’s Law Dictionary 1295 (6th ed. 1990))).
                                    33

      As a result of this very tenuous nature of flight and resistance

evidence, we have often noted its presence in prosecutions for possession

of illegal drugs, but we have remained reluctant to find a real inference

from such evidence that the accused actually exercised possession of the

illegal substance eventually found. See, e.g., Atkinson, 620 N.W.2d at 5–

6.   Instead, where an accused raises some plausible explanation for

behavior the State invites us to find suspicious and suggestive of guilt of

the crime charged, we have generally rejected the State’s proposed

inference as too speculative in the absence of something more. See, e.g.,

id. (noting, where accused explained her “furtive” hand movements as

the result of an attempt to move her nearby purse, any “conclusion that

the defendant exercised control over [the contraband] by attempting to

hide it would be based on pure speculation”).

      Here, I cannot find the evidence of Thomas’s resistance substantial

evidence of his possession of the cocaine and marijuana found in

Norvell’s bedroom on Norvell’s purse. This conclusion is based in part on

both Henderson’s explanation and Thomas’s own explanation for his

behavior—namely, his mistaken but nonetheless real fear of the

outstanding warrant for his arrest. Those explanations alone weaken my

confidence in the chain of inferences the State urges from the resistance

evidence, as they cast substantial doubt on the notion Thomas’s behavior

was attributable to consciousness of guilt for possessing the drugs under

the circumstances presented here.

      The majority also places great emphasis on the fact the marijuana

and cocaine were found by the officers near where Thomas stood while
                                        34

resisting the officers’ entrance into the room. 8       But, as I have already

noted, this court’s decisions have consistently held mere proximity to

contraband in a jointly occupied structure or vehicle will not suffice to

support a conviction based on constructive possession. The compelling

need to apply this principle here seems obvious because the bedroom

was Norvell’s, the purse on which the drugs were found was Norvell’s, the

officers had seen Henderson smoking marijuana just moments before he

entered the bedroom, and all the other occupants of the apartment were

seated around a table where the cocaine residue-laden spoon and empty

plastic bags were found.

      Our caselaw confronting similar scenarios affirmatively counsels

against a conviction here, given the discovery of the paraphernalia near

the other three occupants, and the discovery of the drugs among

Norvell’s belongings, in Norvell’s bedroom. See Webb, 648 N.W.2d at 79,

81 (overturning possession conviction and noting none of the prohibited

“items [were] found near or among Webb’s personal belongings”);

McDowell, 622 N.W.2d at 308 (“There is no evidence that defendant had

ever accessed the purse belonging to Scott in which the firearm was

contained.”). The inference to be drawn from the totality of this evidence

points away from Thomas, suggesting it was more likely the marijuana

and cocaine belonged to someone else present in the apartment, and

accordingly, suggesting it was more likely some other occupant

possessed it for purposes of our analysis.

      The cases cited by the majority, by contrast, examine starkly

different scenarios, where the evidence supporting guilt has been far less

      8Henderson’s   testimony indicated Thomas was not by the wall behind the door
when the officers actually entered the bedroom, but instead had retreated away from
the door toward the bed as the officer forced the door open.
                                      35

speculative than the evidence we consider here. In DeWitt, for example,

officers corroborated information from a confidential informant who had

previously specifically identified DeWitt, his intent to sell the drugs

eventually discovered, and the vehicle in which he would be traveling

with the drugs.     State v. DeWitt, 811 N.W.2d 460, 465 (Iowa 2012).

Although other individuals had “occasional[]” access to the vehicle where

the drugs were found, DeWitt was the sole occupant at the time of

discovery, and we noted DeWitt “was the most recent driver” and “a

frequent driver of the car: he drove it six days a week for work.” Id. at

475–76.    Notably, for purposes of our analysis here, the scenario in

DeWitt involved no other individual who might have been suspected of

controlling the drugs. On those facts, the Dewitt scenario presented far

less risk of inappropriate speculation than the facts we consider here.

      The circumstances in State v. Carter, 696 N.W.2d 31 (Iowa 2005),

are likewise distinguishable.     There, officers, in attempting to stop a

vehicle for a license plate infraction, observed the vehicle “cross[] three

lanes of traffic, [strike] the curb, and just miss[] a light pole.” Carter, 696

at 34. While that was happening, officers observed the driver “making

movements with his right hand all the way down to the floorboard,

causing his head to go down so he could not see the road.”            Id.   On

further investigation, the officer discovered drugs “in the same area

toward which the driver of the Blazer was moving his hand just prior to

the stop.” Id. at 35. On those facts, we concluded, “the district court

could reasonably infer that Carter was exhibiting a proprietary interest in

the controlled substances by desperately trying to hide them while the

police were pursuing him, resulting in his losing control of the Blazer.”

Id. at 41. And, we added, “Carter’s furtive movements in contrast to the

passenger’s lack of such movements would further support such an
                                          36

inference.” Id. Here, we had no evidence of Thomas’s movement toward

the purses, we had evidence affirmatively delinking Thomas from the

drugs in the form of Henderson’s testimony, and we had evidence of

flight from both Henderson and Thomas. Carter therefore bears little, if

any, resemblance to our facts for purposes of concerns about

speculativeness, despite the majority’s strained attempt to conclude

otherwise. 9

       The majority also notes Thomas had $120 cash on his person,

while the others present in Norvell’s apartment had none.                    We have

previously acknowledged in our caselaw that some substantial sum of

money found on an accused in conjunction with discovery of drug

paraphernalia in the accused’s residence may, in certain instances,

support a finding of possession. See State v. Randle, 555 N.W.2d 666,

668, 672 (Iowa 1996) (examining a scenario where police found $395 on

an accused). We have also explained, however, that even where an illegal

substance is found in an accused’s residence, in the absence of more

substantial evidence like fingerprints on the recovered substance,

immediate and exclusive access to the substance, or discovery among the

personal belongings of the accused, evidence of discovery of a similar

sum of money on an accused is “too tenuous and speculative to support

an inference of constructive possession.”              Webb, 648 N.W.2d at 80

       9The  majority labors even more strenuously in attempting to rely on Maxwell
and Nitcher. In Nitcher, we had evidence of the defendant’s occupancy of the premises
where drugs were discovered, his fingerprint on paraphernalia involved in the drug
manufacturing process and laden with precursor residue, the scent of precursor
emanating from his clothing, and additional paraphernalia used in the manufacturing
process located in close proximity to his clothing in his bedroom. See State v. Nitcher,
720 N.W.2d 547, 558 (Iowa 2006). In Maxwell, we had evidence the defendant was the
sole recent occupant of the vehicle in which the drugs were found, the drugs were found
in a box of cigarettes wedged between the front seats in reach of the defendant as he
was driving, and the defendant was found with a box of the same brand of cigarettes on
his person, in addition to the evidence of his furtive behavior. Maxwell, 743 N.W.2d at
194. Neither case raises anything like the spectre of speculation we confront here.
                                    37

(examining scenario where accused was found with $336 on his person).

Regardless the nature of the circumstances, however, I conclude $120

falls far short of the threshold value on which a reasonable fact finder

may rely as circumstantial evidence tending to prove possession of

drugs.   Common sense dictates this amount fails to reliably indicate

dealing in controlled substances. See, e.g., State v. Brown, 313 S.E.2d

585, 589 (N.C. 1984) (noting “over $1,700 in cash” was a figure worth

considering in its possession analysis).

      More importantly, in both Webb and Randle, we noted the

importance of the discoveries of contraband in the residences of the

accused—a circumstance conspicuously absent here.        See Webb, 648

N.W.2d at 81; Randle, 555 N.W.2d at 672.       The value of the money

recovered from Thomas was equally consistent with any number of

eventualities, including a weekly trip to the ATM, the purchase of a few

tickets to a baseball game, or a trip to the grocery store. As we have

often explained, and as I think it important to emphasize in this case

with respect to both the money found in Thomas’s possession and the

totality of the circumstances, “when two reasonable inferences can be

drawn from a piece of evidence,” such evidence can give rise only “to a

suspicion, and, without additional evidence, is insufficient to support

guilt.” State v. Truesdell, 679 N.W.2d 611, 618–19 (Iowa 2004).

      In cases like this where reasonable inferences other than the ones

the State urges may be drawn, I would conclude the evidence cannot

support a finding of guilt. See id.; Cashen, 666 N.W.2d at 572–73; cf.

George H. Singer, Constructive Possession of Controlled Substances: A

North Dakota Look at A Nationwide Problem, 68 N.D. L. Rev. 981, 1008

(1992) (noting joint occupancy cases require “the most exacting scrutiny”

and “possession cannot be established by virtue of the fact that the
                                    38

defendant has been in the company of one who has a narcotic on his or

her person or is present in an area where narcotics are found,” and

explaining “[i]ndependent evidence that links each defendant to the

contraband must be presented”).

      Taking all the evidence together, then, I conclude Thomas’s brief

proximity to where the drugs were eventually discovered and his strong

reluctance to interact with the police cannot constitute substantial

evidence of his possession of the marijuana and cocaine.         Numerous

other equally plausible explanations of the sequence of events linking the

marijuana and cocaine to others abound here, and I thus cannot find the

State’s evidence was “wholly inconsistent with any rational” explanation

of Thomas’s innocence.       See Reeves, 209 N.W.2d at 21 (quoting

Schurman, 205 N.W.2d at 734). Accordingly, I conclude the district court

erred in failing to grant Thomas’s motion for directed verdict on the

possession charges and I would therefore affirm the well-reasoned

opinion of the court of appeals.
      I also think it prudent to note that as of mid-year 2013, there were
approximately 1860 individuals incarcerated in Iowa prisons for drug
offenses as their most serious offense. See Div. of Criminal & Juvenile
Justice Planning, Iowa Dep’t of Human Rights, Iowa Prison Population
Forecast FY2013–2023, at 26 (2013) [hereinafter 2023 Forecast] (“[T]he
percent of inmates serving sentences for drug crimes (as their most
serious offense) has increased from two percent in 1988 . . . to 23
percent in 2001, remaining at 23 percent in 2013 . . . .”); id. at 12 (“Drug
admissions have been one of the driving forces behind rising prison
populations in Iowa for more than the past decade, reaching their peak
in FY2004, when 32 percent of the new inmates entering prison were
committed for drug offenses.       More broadly, between FY2004 and
                                    39

FY2013, nearly 27 percent of Iowa’s prison population has entered prison
after conviction for drug crimes.”).       The doctrine of constructive
possession is a court-made construct. This court has historically limited
the doctrine’s application in drug cases by upholding convictions only
when the State has linked a defendant to illegal substances through
proof that establishes his dominion and control and thereby excluded
other persons jointly occupying a space who might also be suspected of
having some connection with the contraband as a consequence of their
presence. Put another way, we have acted as careful gatekeepers of a
court-made doctrine and by doing so have avoided exacerbating the
overcrowding of our prisons with drug offenders. See 2023 Forecast, at 3
(“By June 30, 2014, Iowa’s prison population is expected to exceed
official capacity by about 750 inmates, or by about 10 percent, if current
offender behaviors and justice system trends, policies, and practices
continue. . . .”); Div. of Criminal & Juvenile Justice Planning, Iowa Dep’t
of Human Rights, Public Safety Advisory Board Report to the Iowa
General Assembly 3 (2013) [hereinafter PSAB Report] (“Eliminating
mandatory sentences for low/low moderate risk [drug] offenders would
result in cost savings without changing return-to-prison rates.”).
Moreover, our careful application of our possession jurisprudence in the
past has been consistent with our distaste for systems of selective
prosecution and our respect for the autonomy rights of individuals
engaging in legal social behavior. See Michael S. Deal, United States v.
Walker: Constructive Possession of Controlled Substances: Pushing the
Limits of Exclusive Control, 2 J. Pharmacy & L., 401, 405 (1994) (noting
in the absence of a standard like the one advocated by Whitebread and
Stevens, “numerous problems arise in conjunction with use of the
constructive possession doctrine; including, the difficulty courts have in
assessing liability in possession cases, liability for presence at a place
                                    40

where drugs are being used and the creation of a system of selective law
enforcement”); see also 2023 Forecast, at 13 (“Another factor pertaining
to drug commitments that bears continued inspection is the relationship
between Iowa’s historically high rate of African-American imprisonment
and drug commitments.”); PSAB Report, at x (“The over-representation of
African-Americans in the prison population has been an ongoing issue
for Iowa.”). I dissent here because I believe the court’s decision today is
inconsistent with these values and takes us in a markedly different
direction.
      Wiggins and Appel, JJ., join this dissent.
