                 IN THE SUPREME COURT OF IOWA

                              No. 10–0828

                       Filed September 23, 2011


STATE OF IOWA,

      Appellee,

vs.

ROBIN EUGENE BRUBAKER,

      Appellant.


      Appeal from the Iowa District Court for Woodbury County, John C.

Nelson, Judge.



      Appeal from judgment of conviction and sentence for unlawful

possession of a prescription drug in violation of Iowa Code section

155A.21(1)   (2009).    REVERSED      AND   CASE    REMANDED      WITH

INSTRUCTIONS.


      Mark C. Smith, State Appellate Defender, and Dennis D.

Hendrickson, Assistant State Appellate Defender, for appellant.



      Thomas J. Miller,     Attorney General, Bridget A. Chambers,

Assistant Attorney General, Patrick A. Jennings, County Attorney, and

Bobbier A. Johnson, Assistant County Attorney, for appellee.
                                     2

WIGGINS, Justice.

      A jury found the defendant guilty of operating while intoxicated

(OWI), fourth offense, in violation of Iowa Code section 321J.2 (2009) and

unlawful possession of a prescription drug in violation of Iowa Code

section 155A.21(1). On appeal, the defendant contends that the district

court erred by denying his motion to suppress evidence found in his car

when officers searched it after his arrest and that his trial counsel was

ineffective for failing to object specifically to the sufficiency of evidence

offered by the State regarding the charge of unlawful possession of a

prescription drug. On our de novo review of the record, we find that trial

counsel was ineffective and that, if he made the proper objection

regarding the sufficiency of evidence, the district court would have

dismissed the unlawful possession charge. Consequently, we reverse the

judgment for unlawful possession of a prescription drug and remand the

case for dismissal of that charge.

      I. Background Facts and Proceedings.

      William Nice is a K-9 officer with the Sioux City Police Department.

Nice has been with the Sioux City police approximately seven years. His

normal duties include routine patrol, calls for service, and traffic

enforcement. On January 16, 2009, Nice was working the second watch,

from 2:30 to 10:30 p.m.      Just before 9:00 p.m., Nice observed a red

Buick LeSabre straddling the center turn lane at the intersection of 14th

and Jackson Streets.     Robin Brubaker was the driver of the vehicle.

After Nice maneuvered his marked patrol car behind the LeSabre,

Brubaker immediately turned it into the parking lot of a convenience

store. Nice continued on with his patrol.

      A few minutes later, Nice observed the same LeSabre traveling

north on Nebraska Street. Once again, Nice maneuvered his patrol car
                                     3

behind the LeSabre, and, once again, Brubaker immediately turned into

a parking lot.    Brubaker activated his turn signal, but only after

initiating the turn. Brubaker parked in the lot near the north end of a

grocery store, but did not exit the vehicle. Nice continued on, but parked

in a location where he could observe the LeSabre.

      It was now approximately 9:10 p.m., and the grocery store was

closed. However, the store’s lights were still on, and employees were still

inside.   Nice determined that the LeSabre’s engine was still running

because he could observe exhaust coming from the tailpipe due to the

cold weather.    After a few minutes the exhaust stopped.         Brubaker

remained in the vehicle.

      Nice thought it was strange someone would sit in a vehicle that

was not running, given the extreme cold. At the suppression hearing,

Nice acknowledged that Brubaker could have been waiting for an

employee getting off work or that he was trying to conserve gasoline.

Further, Nice stated that Brubaker was not engaged in any criminal

activity at the time and that there was no specific criminal activity afoot.

Nevertheless, Nice decided to approach Brubaker as a casual encounter

to see why Brubaker was acting the way he was, if he had any good

reason for being there, if there was anything wrong, or if he was lost.

Additionally, Nice was concerned that Brubaker could have been having

a medical problem.         Nice also considered that he had witnessed

Brubaker commit two minor traffic infractions. In short, the totality of

everything that Nice observed up to that point prompted him to approach

the vehicle.

      As he drove his patrol car into the store parking lot, Nice did not

activate his lights, but turned on the camera mounted in his patrol car

and parked at an angle behind the LeSabre. He testified that he did not
                                     4

consider this a traffic stop. Nice, in full police uniform, approached the

driver’s side of the LeSabre.     Upon reaching the driver’s door of the

LeSabre, he observed Brubaker reading a brochure. Nice tapped on the

window, and Brubaker opened the car door.

      Nice greeted Brubaker and asked him how he was doing.           Nice

reported an overwhelming odor of alcohol coming from inside the vehicle.

Nice further queried Brubaker as to where he was coming from, if he was

drinking, and what was he doing.      While doing so, Nice observed that

Brubaker slurred his speech and had bloodshot, watery eyes. Less than

thirty seconds after his initial contact with Brubaker, Nice called for the

assistance of an Alcohol Safety Action Program (ASAP) officer to conduct

field sobriety tests.

      Sioux City police officer Angela Kolker arrived at the parking lot at

9:12 p.m.     Kolker has been a police officer for thirteen years and is

trained in OWI detection, recognition, field sobriety tests, and implied

consent. Kolker approached the LeSabre from the passenger’s side while

Brubaker was still sitting in his car, talking to Nice. From her vantage

point, Kolker observed an open twelve-pack of beer on the floorboard in

the rear of the vehicle.

      Nice asked Brubaker to surrender the keys to the vehicle. Instead,

Brubaker picked up the keys from the passenger seat and put them in

his pocket.     Nice denied Brubaker’s request to leave and advised

Brubaker of his Miranda rights.

      Kolker informed Nice that there was a fifteen-minute observation

period required prior to administering a preliminary breath test and that

during that time nothing could go into Brubaker’s mouth, as it could

cause a false reading. Nice asked Brubaker if he had anything in his

mouth. Brubaker then produced a piece of candy and began to unwrap
                                         5

it.   Nice advised Brubaker not to put the candy into his mouth.

Defiantly, Brubaker put the candy into his mouth.

      Nice then ordered Brubaker out of the car. Brubaker refused and

grabbed the steering wheel. Nice and Kolker attempted, unsuccessfully,

to physically remove Brubaker from the LeSabre. Utilizing a Taser, Nice

and Kolker forcibly removed Brubaker from the vehicle. Out of the car,

Brubaker continued to be noncompliant.           Eventually, Nice and Kolker

subdued Brubaker and took him into custody.                They then moved

Brubaker to a squad car, and another officer transported Brubaker to

the jail. Brubaker was arrested for failure to obey and subsequently for

operating a motor vehicle while intoxicated.

      At   trial,   Kolker   testified   that   she   observed   Brubaker   for

approximately fifteen to twenty minutes during the encounter.          Kolker

believed that Brubaker was under the influence of something based on,

among other things, Brubaker’s slow movements.             For example, when

Nice asked for the keys, it seemed Brubaker had forgotten what he was

going to do with them once he found them. Kolker further testified that

Brubaker showed impaired decision making. The district court allowed

Kolker’s opinion over defense counsel’s objection finding that she had

been trained to recognize the signs of intoxication and that she had dealt

with intoxicated people many times.

      Once Brubaker was removed from the scene, Kolker and Nice

searched Brubaker’s car, including under the rear seat cushion and in

the trunk.    They did not have a search warrant for the vehicle, but

believed it to be justified as a search incident to the arrest. The interior

of Brubaker’s car was very cluttered. There were several containers of

beer, some of which were open. Additionally, Kolker and Nice searched a
                                     6

large duffel bag containing clothes and toiletries. Inside a sock, Kolker

discovered a scale.

      As to the search under the rear seat, Kolker testified:

             And when we moved the clothes and then the seat for
      the - - the back seat is just one big cushion that you can - -
      that you can take - - lift out and move. And underneath
      there, there was a - - first thing that we found was an
      eyeglasses case, like a soft one, that had - - I think it was
      soft, that had syringes in it, and there was a - - like a
      prescription pill bottle, one of those plastic brown bottles,
      didn’t have a label printed stuck to it, but it was a - - like a
      brown prescription bottle with some pills in it. And then
      there was a second eyeglasses case that had more syringes
      in it. And the last thing was a glass meth pipe that had
      some like some - - like steel wool stuff in it - - tucked in it.

      Kelli Bodwell is a criminalist with the Criminalist Laboratory of the

Iowa Division of Criminal Investigation.     As part of her job, Bodwell

analyzes physical evidence in criminal cases, writes reports on the

findings, and testifies in court, if necessary. Bodwell examined the fifty-

one yellow pills found inside the brown prescription bottle taken from

Brubaker’s vehicle.

      Bodwell’s report stated the pills were “consistent in appearance

with a pharmaceutical preparation containing [C]lonazepam.”         Bodwell

also testified that Clonazepam was a Schedule IV controlled substance,

requiring a prescription.

      The jury found Brubaker guilty of operating while intoxicated and

unlawful possession of a prescription drug.     The district court entered

judgment and imposed sentences for the two convictions.           Brubaker

timely filed his notice of appeal.

      Brubaker testified that his car had been previously owned by three

or four other people.       He further testified that he frequently had

passengers in the back seat of his car.     Brubaker denied that he was
                                      7

intoxicated and testified that he did not cooperate with officers because

he was upset with what he believed was bullying by the officer.           He

stated that he was not an intravenous drug user and denied knowing

anything about the pills found in his car. Likewise, he denied knowing

how the syringes and pipe got into his vehicle.

      II. Issues.

      Brubaker asserts that the district court erred in denying his

motion to suppress the pills found in his vehicle at the time of his arrest.

Additionally, Brubaker contends that his trial counsel was ineffective

because he failed to argue specifically in his motion for judgment of

acquittal that there was insufficient evidence to prove that the substance

he possessed was Clonazepam.         The issue involving the sufficiency of

evidence is dispositive of this appeal. Therefore, we will not address any

other issue presented.

      III. Preservation of Error.

      At the close of the State’s case, trial counsel for Brubaker moved

for a directed verdict of acquittal alleging broadly that the State failed to

generate a jury question and prove the elements of the offenses as

charged. See Iowa R. Crim. P. 2.19(8). We have held, “To preserve error

on a claim of insufficient evidence for appellate review in a criminal case,

the defendant must make a motion for judgment of acquittal at trial that

identifies the specific grounds raised on appeal.” State v. Truesdell, 679

N.W.2d 611, 615 (Iowa 2004).          The motion for directed verdict of

acquittal by Brubaker’s trial counsel lacked any specific grounds, and

thus, the error was not preserved.

      Failure of trial counsel to preserve error at trial can support an

ineffective-assistance-of-counsel claim.     Id. at 615–16.     “Ineffective-

assistance-of-counsel claims have their basis in the Sixth Amendment to
                                       8

the United States Constitution.” State v. Vance, 790 N.W.2d 775, 785

(Iowa 2010). A defendant may raise the ineffective assistance claim on

direct appeal if he or she has reasonable grounds to believe the record is

adequate to address the claim on direct appeal. Iowa Code § 814.7(2).

We   acknowledge     that    ineffective-assistance-of-counsel   claims   are

normally considered in postconviction relief proceedings.           State v.

Soboroff, 798 N.W.2d 1, 8 (Iowa 2011). A primary reason for doing so is

to ensure development of an adequate record to allow the attorney

charged to respond to the defendant’s claims. State v. Coil, 264 N.W.2d

293, 296 (Iowa 1978).       However, “[p]reserving ineffective-assistance-of-

counsel claims that can be resolved on direct appeal wastes time and

resources.” Truesdell, 679 N.W.2d at 616. Having reviewed the record in

the case before us, we conclude that the record is sufficient to address a

claim of ineffective assistance of counsel, and this claim should not be

preserved for a postconviction relief proceeding.

      IV. Scope of Review.

      A claim of ineffective assistance of counsel is reviewed de novo. Id.

at 615.   We review sufficiency-of-the-evidence claims for correction of

errors at law. State v. Webb, 648 N.W.2d 72, 75 (Iowa 2002). We will

uphold a verdict if it is supported by substantial evidence.       Id. at 75.

When a rational fact finder is convinced by the evidence that the

defendant is guilty beyond a reasonable doubt, the evidence is

substantial. Id. at 75–76. “The evidence is reviewed in the light most

favorable to the State, and all of the evidence presented at trial, not just

evidence that supports the verdict, is considered.” State v. Kemp, 688

N.W.2d 785, 789 (Iowa 2004). However, it is the State’s “burden to prove

every fact necessary to constitute the crime with which the defendant is
                                     9

charged, and the evidence presented must raise a fair inference of guilt

and do more than create speculation, suspicion, or conjecture.” Id.

      V. Ineffective Assistance of Counsel.

      A. Generally.     To establish an ineffective-assistance-of-counsel

claim, a defendant must prove by a preponderance of the evidence:

(1) trial counsel failed to perform an essential duty, and (2) prejudice

resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,

2064, 80 L. Ed. 2d 674, 693 (1984).          “Ineffective assistance under

Strickland is deficient performance by counsel resulting in prejudice,

with performance being measured against an ‘objective standard of

reasonableness,’ ‘under prevailing professional norms.’ ”            State v.

Maxwell, 743 N.W.2d 185, 195 (Iowa 2006) (quoting Rompilla v. Beard,

545 U.S. 374, 380, 125 S. Ct. 2456, 2462, 162 L. Ed. 2d 360, 371 (2005)

(internal citations omitted)) (internal quotation marks omitted).

      B. Failure to Perform an Essential Duty. “[C]laims of ineffective

assistance involving tactical or strategic decisions of counsel must be

examined in light of all the circumstances to ascertain whether the

actions were a product of tactics or inattention to the responsibilities of

an attorney.” Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001). “We

begin with the presumption that the attorney performed competently”

and “avoid second-guessing and hindsight.”             Id. (internal citations

omitted). We will not find counsel incompetent for failing to pursue a

meritless issue. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999).

      1. Meritless    issue.    Brubaker’s     trial    attorney    performed

competently if it would have been meritless to argue specifically in his

motion for judgment of acquittal that there was insufficient evidence to

prove the substance Brubaker possessed was Clonazepam.              Thus, we

must first determine the merits of such an argument.
                                    10

      Iowa Code section 155A.21(1) provides, “A person found in

possession of a drug or device limited to dispensation by prescription,

unless the drug or device was so lawfully dispensed, commits a serious

misdemeanor.” Iowa Code § 155A.21(1). To be convicted, the following

three elements must be established:         (1) Brubaker was found in

possession, (2) of a prescription drug, and (3) the drug was not lawfully

dispensed to him. Brubaker insists the State failed to establish beyond a

reasonable doubt that the fifty-one pills found in his vehicle alleged to be

Clonazepam, were, in fact, Clonazepam.

      On direct examination the State solicited the following testimony

from Bodwell:

      Q. Miss Bodwell, what is your occupation? A. I’m a
      criminalist with the Iowa Division of Criminal Investigation
      Laboratory.

      ....

      Q. As part of your duties, do you analyze prescription drugs
      too? A. I will look at prescription drugs and analyze them
      as necessary, yes.

      Q. And how do you do this? A. If it is a Schedule III or
      below controlled substance, the normal procedure is to look
      at it visually, then compare it to reference materials.

      ....

      Q. Thank you.      Miss Bodwell, do you recognize this?      A.
      Yes, I do.

      Q. And what is it? A. State’s Exhibit Number 4 is a copy of
      the report that I prepared, April 22, 2009, concerning this
      case.

      ....

      Q. And what does this report indicate? A. [F]ifty-one yellow
      tablets [that are] consistent with the appearance of a
      pharmaceutical, Clonazepam, a Schedule IV controlled
      substance.
                                     11
      Q. And is a prescription required for Clonazepam? A. Yes,
      it is.

      Q. And how do you know this? A. Per the reference
      material that I looked up to find what this drug was; it
      indicated that it was a prescription drug.

Bodwell’s report reads as follows: “FINDINGS: consistent in appearance

with a pharmaceutical preparation containing clonazepam, Schedule IV.”

(Emphasis added.)      The record lacks any other evidence regarding the

positive identification of the fifty-one yellow pills found in Brubaker’s

vehicle.
      We have always recognized that, for a person to be convicted of a

drug offense, the State is not required to test the purported drug. In the

Interest of C.T., 521 N.W.2d 754, 757 (Iowa 1994). The finder of fact is

free to use circumstantial evidence to find that the substance is an illegal

drug. Id. The reason for this rule is that circumstantial evidence is not

inferior to direct evidence.   State v. Blair, 347 N.W.2d 416, 421 (Iowa

1984). In a given case, circumstantial evidence may be more persuasive

than direct evidence.     State v. Stamper, 195 N.W.2d 110, 111 (Iowa

1972).     Circumstantial evidence is equally probative as direct evidence

for the State to use to prove a defendant guilty beyond a reasonable

doubt. State v. O'Connell, 275 N.W.2d 197, 205 (Iowa 1979).

      The question we must decide is whether a rational trier of fact

could have found that all essential elements of the crime were

established beyond a reasonable doubt based on the evidence produced

at trial.     State v. Robinson, 288 N.W.2d 337, 339 (Iowa 1980).

“Inferences drawn from the evidence must raise a fair inference of guilt

on each essential element . . . .”    Truesdell, 679 N.W.2d at 618.      An

inference must do more than “create speculation, suspicion, or

conjecture.” Webb, 648 N.W.2d at 76. Evidence that allows two or more
                                    12

inferences to be drawn, without more, is insufficient to support guilt.

Truesdell, 679 N.W.2d at 618–19.

      The State chose not to have the pills tested or call a qualified

expert witness to testify that the pills were, in fact, Clonazepam. Thus,

there is no direct evidence that the pills found in Brubaker’s vehicle were

a prescription drug.   Instead, the State relied on the testimony of a

criminalist who compared the pills to a picture of Clonazepam.         After

making the comparison, the criminalist was only able to say the pill was

consistent in appearance with a pharmaceutical preparation containing

Clonazepam. Just because a pill looks like Clonazepam does not mean it

is Clonazepam.

      The criminalist also testified that Clonazepam was a prescription

drug by looking in the same reference material that led her to conclude

the pill was consistent in appearance with Clonazepam. This testimony,

alone or with her other testimony, does not establish that the pills were

Clonazepam.

      One court listed six factors a fact finder could use to determine

whether a substance is an illegal drug in lieu of expert testimony. United

States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976).

      Such circumstantial proof may include evidence of the
      physical appearance of the substance involved in the
      transaction, evidence that the substance produced the
      expected effects when sampled by someone familiar with the
      illicit drug, evidence that the substance was used in the
      same manner as the illicit drug, testimony that a high price
      was paid in cash for the substance, evidence that
      transactions involving the substance were carried on with
      secrecy or deviousness, and evidence that the substance was
      called by the name of the illegal narcotic by the defendant or
      others in his presence.

Id.
                                    13

      Other courts have listed additional circumstantial evidence to aid

the state in its burden to prove a substance is an illegal drug. These

factors include whether ingestion of the substance caused a change in

the defendant’s behavior, Chancey v. State, 349 S.E.2d 717, 725 (Ga.

1986); whether the defendant referred to the substance as “very good

stuff,” Swain v. State, 805 P.2d 684, 686 (Okla. Crim. App. 1991); and

whether the known odor of the substance identified it as an illegal drug,

State v. Salois, 766 P.2d 1306, 1310 (Mont. 1988). These factors are not

exclusive, and the state is not required to prove all of these

circumstances were present to sustain a conviction. Rather, we look at

these circumstances in light of the evidence produced at trial to

determine whether the state produced sufficient evidence to support the

proposition that the substance was an illegal substance when expert

testimony did not identify the substance as illegal.

      Applying this standard, we find the jury was left to speculate as to

whether the pills were Clonazepam and to rely upon conjecture to reach

a verdict of guilt.   We reach this conclusion for a number of reasons.

First, although the criminalist testified that the pills appeared to be

Clonazepam, an examination of the pills reveals that they are similar in

size, shape, and consistency to aspirin and other over-the-counter drugs

readily available without a prescription. Second, even though the officers

found the pills in a generic pill bottle, the bottle contained no label or

other indication of the identity of its contents.      Many people use old

prescription bottles to store items, including pills. Third, although the

officers found the pills with a syringe and a glass pipe, there is no

evidence that the syringe or pipe found in the car had anything to do

with illegal drug use.   The State did not put on any testimony that a

person could crush, dissolve, and use Clonazepam by smoking it or
                                     14

injecting it into his or her body.   The fact that the pills appear to be

Clonazepam and that the officers found them under the back seat is

insufficient to establish they were, in fact, Clonazepam.

      The testimony presented at trial only indicated that a criminalist,

whose training or prior experience was unknown, compared the pills to

reference materials and, after doing so, could only state that the pills

were “consistent in appearance with a pharmaceutical preparation

containing [C]lonazepam.” The criminalist did not specify that the pills

were Clonazepam, nor does she explain how she reached her conclusion

that the pills were consistent in appearance with a pharmaceutical

preparation containing Clonazepam. Under this record, the criminalist’s

testimony is not sufficient to allow the jury to make a finding the pills

were, in fact, Clonazepam without speculating that the pills were

Clonazepam. Consequently, if trial counsel had made the proper motion

for acquittal based upon the State’s failure to provide sufficient evidence

to support the necessary element of the crime that the pills were

Clonazepam, the court would have sustained the motion.

      2. Trial strategy. “Miscalculated trial strategies and mere mistakes

in judgment normally do not rise to the level of ineffective assistance of

counsel.” Ledezma, 626 N.W.2d at 143. “Trial counsel’s performance is

measured objectively by determining whether counsel’s assistance was

reasonable, under prevailing professional norms, considering all the

circumstances.” State v. Lyman, 776 N.W.2d 865, 878 (Iowa 2010). The

Supreme Court indicates the prevailing norms of practice are reflected in

the American Bar Association standards and like documents. Strickland,

466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

      Our Code of Professional Responsibility for Lawyers provides, “A

lawyer shall provide competent representation to a client.     Competent
                                     15

representation requires the legal knowledge, skill, thoroughness, and

preparation reasonably necessary for the representation.” Iowa R. Prof’l

Conduct 32:1.1.    It is well-settled law that a motion for judgment of

acquittal must specify the grounds for acquittal. Truesdell, 679 N.W.2d

at 615. Failure to make a proper motion for judgment of acquittal at trial

identifying the specific grounds for the motion is not a trial strategy.

Therefore, Brubaker’s trial counsel failed to perform an essential duty.

      C. Resulting Prejudice. In order to prove prejudice resulted from

trial counsel’s failure to perform an essential duty, Brubaker must

establish “a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698.

Brubaker “need only show that the probability of a different result is

‘sufficient to undermine confidence in the outcome.’ ” State v. Palmer,

791 N.W.2d 840, 850 (Iowa 2010) (quoting State v. Graves, 668 N.W.2d

860, 882 (Iowa 2003)) (internal quotation marks omitted).

      Having found that the district court would have sustained trial

counsel’s proper objection, Brubaker was prejudiced by his trial

counsel’s failure to object to the sufficiency of evidence and move for

judgment of acquittal citing this specific reason. Therefore, Brubaker’s

trial counsel was ineffective as a matter of law.

      VI. Disposition.

      Had Brubaker’s trial counsel made the proper objection, the

district court would have found the State failed to establish sufficient

evidence to support the conviction of guilt under Iowa Code section

155A.21(1). Therefore, we reverse the judgment for unlawful possession

of a prescription drug and remand the case for dismissal of that charge.

      REVERSED AND CASE REMANDED WITH INSTRUCTIONS.
