                   IN THE COURT OF APPEALS OF IOWA

                              No. 4-003 / 11-2088
                            Filed February 19, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KENNETH JAMES SHADLOW,
     Defendant-Appellant.
________________________________________________________________


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

Moothart, District Associate Judge.



      Kenneth Shadlow appeals his judgment and sentences for operating a

motor vehicle while intoxicated, second offense; possession of a controlled

substance (methamphetamine), second offense; and possession of a controlled

substance (marijuana), second offense. AFFIRMED.



      Mark D. Reed of Marberry Law Firm, P.C., Urbandale, for appellant.

      Thomas J. Miller, Attorney General, Martha Trout, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Jeremy Westendorf,

Assistant County Attorney, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
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VAITHESWARAN, J.

       Kenneth Shadlow appeals his judgment and sentences for operating a

motor vehicle while intoxicated, second offense; possession of a controlled

substance (methamphetamine), second offense; and possession of a controlled

substance (marijuana), second offense.         He contends (1) there is insufficient

evidence to support the jury’s findings of guilt and (2) his trial attorney was

ineffective in several respects.

I.     Sufficiency of the Evidence

       A.     Operating while intoxicated (Count I)

       The jury was instructed that the State would have to prove the following

elements of operating a motor vehicle while intoxicated:

              1. On or about the 23rd day of November, 2010, the
       defendant operated a motor vehicle.
              2. At that time, the defendant either: (a) was under the
       influence of drugs, or (b) had any amount of a controlled substance
       present, as measured in the defendant’s blood or urine.
              (It is not necessary for all jurors to agree to just (a) or (b). It
       is only necessary that all jurors agree to at least one of these two
       alternatives.)

       Shadlow focuses on the first element. He contends there was insufficient

evidence to establish he “operated” the motor vehicle. The State concedes the

absence of direct evidence on this element but points to circumstantial evidence

supporting the jury’s finding. State v. Hopkins, 576 N.W.2d 374, 377-78 (Iowa

1998) (“The evidence may fail to prove that an intoxicated defendant was in the

process of operating a motor vehicle when the authorities found him or her.

Nevertheless, circumstantial evidence may establish that the defendant had

operated while intoxicated when driving to the location where the vehicle was
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parked.” (internal citations and quotation marks omitted)); see also State v.

Brubaker, 805 N.W.2d 164, 172 (Iowa 2011) (“In a given case, circumstantial

evidence may be more persuasive than direct evidence.”).

       The jury could have found the following facts.    A Black Hawk County

deputy sheriff was dispatched to a rural road after a person reported hearing a

loud bang and squealing tires, followed by a male voice yelling, “God, help me.”

The deputy arrived within minutes to find Shadlow bloody and “staggering” down

the middle of the road. Shadlow “fell” into the deputy’s car, yelled that he had

been in an accident, and slid down the side of the patrol car to the ground. The

deputy did not see a car in the vicinity but thought Shadlow agreed that he

wrecked the car around a nearby S curve. The car was found in that area.

       We are obligated to view the evidence in the light most favorable to the

State. See State v. Creighton, 201 N.W.2d 471, 472 (Iowa 1972). Examined in

that light, we find the evidence sufficient to establish Shadlow’s operation of a

motor vehicle. See id. at 472-73 (finding “enough evidence—barely—to identify

defendant as the driver of the vehicle involved in this single-car accident,” but

reversing on the “under the influence” element). Shadlow does not challenge the

sufficiency of the evidence supporting the “under the influence” element.

Accordingly, we affirm the jury’s finding of guilt for operating a motor vehicle

while intoxicated.

       B.     Possession of controlled substances (Counts II and III)

       The jury received identical instructions on the crimes of possession of

methamphetamine and marijuana:
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              1. On or about the 23rd day of November, 2010, the
       defendant knowingly or intentionally possessed methamphetamine
       [marijuana].
              2. The defendant knew that the substance he possessed
       was methamphetamine [marijuana].

The jury was further instructed:

              The law recognizes several kinds of possession. A person
       may have actual possession or constructive possession . . . .
              A person who has direct physical control over a thing on his
       person is in actual possession of it. A person who, although not in
       actual possession, has both the power and the intention at a given
       time to exercise dominion or control over a thing, either directly or
       through another person or persons, is in constructive possession of
       it. A person’s mere presence at a place where a thing is found or
       proximity to the thing is not enough to support a conclusion that the
       person possessed the thing . . . .

       We begin by noting that the drugs were not “on [Shadlow’s] person.” For

that reason, Shadlow could not have been in actual possession of the drugs.

See State v. Maxwell, 743 N.W.2d 185, 193 (Iowa 2008) (“A person has actual

possession of a controlled substance when that substance is found on the

person.”). We turn to whether sufficient facts supported constructive possession.

The focus of a constructive possession claim is on a person’s ability to maintain

control over the drugs. State v. Kern, 831 N.W.2d 149, 161 (Iowa 2013).

       A reasonable juror could have found the following facts. A cigarette box

was on the road “[m]aybe a couple of inches” from where Shadlow lay. The box

did not appear to have been exposed to the elements or trammeled by vehicles.

Separate    baggies   inside   the   cigarette   box   contained   marijuana   and

methamphetamine. Nobody else was nearby. Shadlow’s erratic behavior was

consistent with the ingestion of drugs.
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       A reasonable juror could have determined that Shadlow had the ability to

maintain control over the drugs and, accordingly, constructively possessed them.

We affirm the jury’s findings of guilt for possession of methamphetamine and

marijuana.

II.    Ineffective Assistance of Counsel

       Shadlow claims his trial attorney was ineffective in failing to (1) preserve

the claim that he lacked dominion and control over the methamphetamine and

marijuana, (2) call a witness regarding the possibility that his wife was the driver

of the vehicle, and (3) object to testimony regarding an ultimate fact at issue. To

prevail, Shadlow must show (1) counsel breached an essential duty and

(2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687 (1984). We

find the record adequate to address these claims. See Brubaker, 805 N.W.2d at

171 (finding the record adequate to address an ineffective-assistance-of-counsel

claim premised on a challenge to the sufficiency of the evidence).

       The first issue is resolved by our conclusion that there was sufficient

evidence to support a finding of constructive possession. Because there was

sufficient evidence, Shadlow’s attorney did not breach an essential duty in failing

to challenge the sufficiency of the evidence supporting the “dominion and control”

element of the possession counts. We preserve the second and third issues for

postconviction relief.

       AFFIRMED.
