                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0924
                               Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRIAN LUCHTENBURG,
     Defendant-Appellant.


      Appeal from the Iowa District Court for Black Hawk County, Stephen C.

Clark (motion to suppress) and George L. Stigler (trial), Judges.



      Defendant appeals his convictions for possession of marijuana, failure to

affix a drug tax stamp, and possession of methamphetamine. AFFIRMED.




      John J. Sullivan of Sullivan Law Office, P.C., Oelwein, for appellant.

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

Attorney General, for appellee.




      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.

       Defendant Brian Luchtenburg appeals his convictions for possession of

marijuana,   failure   to   affix   a    drug   tax   stamp,   and   possession   of

methamphetamine. We conclude there was probable cause for the issuance of

the search warrant and the district court properly denied Luchtenburg’s motion to

suppress.    We find there is sufficient evidence in the record to support the

convictions for possession of marijuana and possession of methamphetamine.

We determine Luchtenburg has failed to show he received ineffective assistance

of counsel due to his defense attorney’s failure to file a motion to strike certain

jurors for cause. We affirm Luchtenburg’s convictions.

       I.     Background Facts & Proceedings

       A United States Postal Inspector contacted the Tri-County Drug

Enforcement Task Force stating he had intercepted a package, which had an

odor of marijuana and weighed about eleven pounds, sent from Northern

California to Jen Davis at 504 W. Lone Tree Road, Cedar Falls, Iowa. Postal

authorities opened the package and found it contained a large quantity of high-

grade marijuana. Most of the marijuana was removed, and a decoy substance

was placed in the package.

       On May 21, 2012, officers set up surveillance at 504 W. Lone Tree Road

and delivered the package.1             Jennifer Molosky, also known as Jennifer

Bergmeier and as Jennifer Davis, picked up the package, and officers stopped

her vehicle as she was driving towards Waterloo.           Molosky stated she was

1
  The residence appeared to be unoccupied. Officers suspected it was used as a “drop
house” for the delivery of drug shipments.
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delivering the package to Brian Luchtenburg and Gayle Howard at 3445 E.

Shaulis Road, Waterloo. Officers were familiar with Luchtenburg and Howard at

that address because they had conducted a search there in September 2011 and

seized a large quantity of methamphetamine.

       Officers set up surveillance at 3445 E. Shaulis Road. Molosky dropped off

the package near a fence. Shortly thereafter, Howard retrieved the package and

took it into the house. When officers approached, Howard denied any knowledge

of the package. Howard was advised of her Miranda rights. She stated there

may be a marijuana bong in the residence. She denied the officers’ request to

search the house.      Howard’s friend, Rhonda Parker, was present during

Howard’s interactions with the officers.     The residence was secured, and a

search warrant was obtained based on the above information.

       The search warrant was executed and officers found a marijuana bong in

the living room. The officers also found a pill bottle in the living room, which had

Luchtenburg’s name on it and contained the ends of marijuana cigarettes. In the

bedroom, inside a jewelry box in the headboard of the bed, officers found

baggies containing methamphetamine, a metal spoon, and a methamphetamine

pipe. Officers also found mail from Luchtenburg to Molosky’s husband in the

headboard. In a nightstand next to the bed the officers found mail addressed to

Luchtenburg. In a suitcase in the bedroom closet, officers found large baggies

containing a total of 134.3 grams of marijuana.

       Luchtenburg was charged with possession of marijuana with intent to

deliver, second offense; failure to affix a drug tax stamp; and possession of
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methamphetamine, third or subsequent offense.          The State also alleged

Luchtenburg was a habitual offender.

      Luchtenburg filed a motion to suppress, claiming the search warrant was

issued without probable cause, officers had entered his home without

permission, and there was a misrepresentation in the warrant application that

Howard admitted there was a marijuana bong in the home. After a suppression

hearing, the district court denied the motion to suppress.     The court found

Sergeant Jason Feaker of the Waterloo Police Department was more credible

than Howard or Parker. The court determined the officers had consent to enter

the residence, the warrant application did not contain misrepresentations, and

the contents of the warrant application were sufficient to establish probable

cause for the search warrant.

      During the trial, Howard testified she pled guilty to possession of

marijuana with intent to deliver and failure to affix a drug tax stamp. Howard

stated all of the methamphetamine and marijuana found in the residence

belonged to her. She stated Luchtenburg was not using illegal drugs because he

was on probation.    On cross-examination Howard did not know how much

marijuana was found in the residence or how much it cost.

      The jury found Luchtenburg guilty of possession of marijuana, third or

subsequent offense; failure to affix a drug tax stamp; and possession of

methamphetamine, third or subsequent offense. Luchtenburg admitted to being

a habitual offender. He was sentenced to a term of imprisonment not to exceed

fifteen years on each count, with the sentences on the first and second counts to
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be served concurrently but consecutive to the sentence on the third count.

Luchtenburg now appeals his convictions.

      II.    Motion to Suppress

      Luchtenburg claims the search warrant application did not present

probable cause for issuance of the search warrant. He states the totality of the

facts and circumstances known to the officers at the time of the warrant

application would not lead a reasonably prudent person to believe criminal

activity was afoot at 3445 E. Shaulis Road. He claims Howard’s statement there

may be a marijuana bong in the residence is not sufficient, and there was no

other evidence of illegal drugs at the home. Luchtenburg points out the only

evidence linking the package of marijuana to him were the statements of

Molosky.

      “The Fourth Amendment requires probable cause to support a search

warrant.” State v. McNeal, 867 N.W.2d 91, 99 (Iowa 2015). On constitutional

issues, we review de novo, based on the totality of the circumstances.        Id.

“However, we do not make an independent determination of probable cause;

rather, we determine ‘whether the issuing judge had a substantial basis for

concluding probable cause existed.’”    Id. (citation omitted). We consider the

information actually presented to the judge issuing the search warrant. Id.

      In determining whether there is probable cause to issue a search warrant,

a court considers,

      “whether a person of reasonable prudence would believe a crime
      was committed on the premises to be searched or evidence of a
      crime could be located there.” Probable cause to search requires a
      probability determination that “(1) the items sought are connected
                                        6


       to criminal activity and (2) the items sought will be found in the
       place to be searched.”

Id. (citations omitted).   “[W]e draw all reasonable inferences to support the

judge’s finding of probable cause and give great deference to the judge’s

finding.” Id. at 100.

       The search warrant application included the information a postal inspector

had intercepted a package containing a large quantity of high-grade marijuana,

the package was picked up by Molosky, Molosky told officers she intended to

deliver the package to Luchtenburg and Howard, and when she left the package

at their residence, it was retrieved by Howard. The application contained the

information officers conducted a search at 3445 E. Shaulis Road in September

2011 and seized a large quantity of methamphetamine.             The application

additionally stated Howard admitted there would be a marijuana bong inside the

residence.

       We determine the judge issuing the search warrant had a substantial

basis for concluding probable cause existed for issuance of the search warrant.

A package, which had contained a large quantity of high-grade marijuana, was

taken into the house. A resident admitted there may be drug paraphernalia in the

house.    Also, there had previously been drug activity at the residence.       We

conclude the district court properly denied Luchtenburg’s motion to suppress.

       III.   Sufficiency of the Evidence

       Luchtenburg claims there is not sufficient evidence in the record to show

he had actual or constructive possession of marijuana or methamphetamine.

Luchtenburg claims the State did not present evidence linking him to the
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controlled substances. He states Howard took total responsibility for the illegal

drugs found in the home.

       We review a challenge to the sufficiency of the evidence for the correction

of errors at law. State v. Keopasaeuth, 645 N.W.2d 637, 639–40 (Iowa 2002).

We will affirm a jury’s verdict if it is supported by substantial evidence. Id. at 640.

Possession of a controlled substance may be shown by actual or constructive

possession of the substance. State v. Reeves, 209 N.W.2d 18, 23 (Iowa 1973).

In this case, the State sought to show Luchtenburg had constructive possession

of marijuana and methamphetamine.          “To prove constructive possession, the

State must show ‘the defendant had knowledge of the controlled substance as

well as the authority or right to control it.’” State v. Kern, 831 N.W.2d 149, 161

(Iowa 2013).

       Where, as here, the defendant was not in exclusive possession of the

premises, “knowledge of the presence of the substances on the premises and

the ability to maintain control over them by the accused will not be inferred but

must be established by proof.” See Reeves, 209 N.W.2d at 23. The proof may

be established by (1) incriminating statements; (2) incriminating actions upon the

discovery by officers of a controlled substance; (3) fingerprints on the package of

a controlled substance; and (4) any other circumstances linking the person to the

controlled substance. Kern, 831 N.W.2d at 161. “The existence of constructive

possession turns on the peculiar facts of each case.” State v. Reed, 875 N.W.2d

693, 705 (Iowa 2016). “The evidence of guilt must generate more than mere

suspicion, speculation, or conjecture.” Id.
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      We first consider whether there is substantial evidence in the record to

show Luchtenburg had constructive possession of the marijuana found in his

home. Luchtenburg and Howard shared a bedroom, and the marijuana was

found inside a suitcase in a closet in that bedroom.       Howard testified the

marijuana belonged to her, but she did not know the weight of the marijuana,

how much she paid for it, or how much it was worth, and the jury could have

determined she was not a credible witness.

      The marijuana was additionally linked to Luchtenburg because Molosky

stated she was delivering the package containing a large quantity of high-grade

marijuana to Luchtenburg and Howard, and the marijuana found in the closet

was of a similar high grade. Also, in the garage, officers found a shipping label

sent from Northern California and addressed to Luchtenburg; the package

delivered by Molosky had been sent from Northern California. Furthermore, a pill

bottle bearing Luchtenburg’s name and containing the ends of marijuana

cigarettes was found in the living room, which could have led the jury to reject

Howard’s statement Luchtenburg was not involved with the illegal drugs found in

their home because he was on probation. We conclude there is substantial

evidence in the record to support the jury’s finding Luchtenburg had constructive

possession of the marijuana.

      We turn to the issue of whether there is substantial evidence in the record

to show Luchtenburg had constructive possession of methamphetamine.           As

noted above, Luchtenburg and Howard shared a bedroom. In the headboard of

the bed, inside a jewelry box, which did not contain jewelry, officers found

baggies with methamphetamine residue, a metal spoon, a methamphetamine
                                        9


pipe, and a straw.       In the headboard there was also correspondence from

Luchtenburg to Molosky’s husband. There was methamphetamine residue in a

bag in a cigar box found on top of a dresser in the bedroom. In the drawer in the

living room where officers found the pill bottle with Luchtenburg’s name

containing the ends of marijuana cigarettes, officers found straws and pipes used

for ingesting methamphetamine. Officers also found a methamphetamine pipe in

the garage. We determine there is substantial evidence in the record linking

Luchtenburg to the methamphetamine found in his home and there is sufficient

evidence in the record to support the jury’s finding he had constructive

possession of methamphetamine.

       IV.     Ineffective Assistance

       Luchtenburg claims he received ineffective assistance because defense

counsel did not move to strike for cause seven jurors on the ground they had

fixed notions of his guilt in advance of trial. He states he did not receive a fair

trial by an impartial jury.

       We review claims of ineffective assistance of counsel de novo. Ennenga

v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective

assistance of counsel, an applicant must show (1) the attorney failed to perform

an essential duty, and (2) prejudice resulted to the extent it denied the applicant

a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). An applicant has

the burden to show by a preponderance of the evidence counsel was ineffective.

See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).

       During voir dire some of the jurors stated they believed Luchtenburg was

guilty because he was facing trial, he had the duty to prove his innocence, and
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they believed he would testify if he was innocent. Defense counsel subsequently

asked each prospective juror if he or she could find Luchtenburg not guilty if the

State failed to prove his guilt beyond a reasonable doubt, and each juror

answered, “Yes.” The district court told the jurors to keep an open mind and

consider only the evidence presented in the courtroom. The court instructed the

jury on the burden of proof, the presumption of innocence, and the defendant’s

right not to testify.

       Iowa Rule of Criminal Procedure 2.18(5)(k) provides a juror may be

challenged for cause for “[h]aving formed or expressed such an opinion as to the

guilt or innocence of the defendant as would prevent the juror from rendering a

true verdict upon the evidence submitted on the trial.” Each juror stated he or

she would find Luchtenburg not guilty if the State failed to prove his guilt beyond

a reasonable doubt, and therefore, the record does not support Luchtenburg’s

claim defense counsel should have moved to strike the jurors for cause.

Moreover, jurors are presumed to follow instructions. See State v. Sanford, 814

N.W.2d 611, 620 (Iowa 2012). We conclude Luchtenburg has failed to show he

received ineffective assistance of counsel.

       We affirm Luchtenburg’s convictions for possession of marijuana, failure to

affix a drug tax stamp, and possession of methamphetamine.

       AFFIRMED.
