STATE v. CULLAR, 699 N.W.2d 685 (Iowa App. 2005)

No. 5-308 / 04-0046Court of Appeals of Iowa.
Filed May 11, 2005

Appeal from the Iowa District Court for Linn County, Denver D. Dillard, Judge.

Defendant-appellant, Corey Lamar Cullar, appeals from his conviction for possession with intent to deliver a controlled substance, a class C felony, in violation of Iowa Code section 124.401(1)(c)(3) (2003). AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, Harold Denton, County Attorney, and Jerry Vander Sanden, Assistant County Attorney, for appellee.

Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.

SACKETT, C.J.

Defendant-appellant, Corey Lamar Cullar, appeals from his conviction for possession with intent to deliver a controlled substance, a class C felony, in violation of Iowa Code section 124.401(1)(c)(3) (2003). He argues that the evidence was insufficient to support a conviction and that the district court erred by failing to provide the jury with the supplemental jury instruction defendant requested. We affirm.

I. BACKGROUND FACTS AND PROCEEDINGS.

After receiving an anonymous tip regarding drug activity at a particular house, police removed trash from in front of the house and searched it. The police found marijuana stems and seeds, torn baggies, and empty baggies containing cocaine residue.

Police then obtained a search warrant, which they executed. At the time of the search, the house was leased to Sheila Elliot and defendant had been renting a room in the basement from Elliot for approximately three weeks. Defendant apparently lived in the basement room with Leetha Jones. The police searched the main floor and the basement of the ranch-style house. On the main floor, in a bedroom, police recovered drug paraphernalia and items containing drug residue. Elliot admitted to police that she was a crack user and that she and Willie McCall had been smoking crack earlier in the day.

In the basement room rented by defendant, a police officer noticed an opening in the basement ceiling. By standing on a chair, an officer looked inside the opening and found twelve individually-wrapped rocks of crack cocaine. Police also found a number of plastic baggies on the night-stand in the bedroom, which were consistent with packaging drugs for sale. Police did not find any device for smoking crack cocaine in the basement.

After receiving a Miranda warning, defendant gave a statement to police. Defendant denied that the crack cocaine found in the ceiling belonged to him. However, defendant did admit that he gave crack cocaine to Sheila Elliot and Willie McCall as payment of rent for his basement residence. Furthermore, defendant admitted to police that he did deal marijuana and that he had flushed some marijuana down the toilet when police entered the house.

After a trial, the jury convicted defendant of possession with intent to deliver a controlled substance, a class C felony, in violation of Iowa Code section 124.401(1)(c)(3).

II. ANALYSIS.

A. Insufficient Evidence.
Defendant first argues that there was insufficient evidence to convict him of possession with intent to deliver a controlled substance. Our review is for correction of errors of law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). “If a rational trier of fact could conceivably find the defendant guilty beyond a reasonable doubt, the evidence is substantial.” Id. We view the evidence in the light most favorable to the State, including all legitimate inferences and presumptions which may be deduced fairly and reasonably from the record. Id.; State v. Simpson, 528 N.W.2d 627, 632-33 (Iowa 1995).

To prove defendant guilty of the offense, the State had to prove defendant knowingly possessed the crack cocaine, defendant knew the substance was a controlled substance, and defendant possessed it with the intent to deliver it.

Defendant first asserts that the State failed to prove beyond a reasonable doubt that he possessed the crack cocaine. The State need not prove actual possession, constructive possession is enough. State v. Cashen, 666 N.W.2d 566, 569 (Iowa 2003) (citin State v. Reeves, 209 N.W.2d 18, 22 (Iowa 1973)). If the accused maintains control or a right of control over the substances, that is enough for constructive possession. State v. Webb, 648 N.W.2d 72, 78 (Iowa 2002) (citing Reeves, 209 N.W.2d at 22). Our courts have developed a more specific rule as to constructive possession when the accused is in joint possession, rather than exclusive possession, of the premises where the substances were found. Id.; State v. McDowell, 622 N.W.2d 305, 308 (Iowa 2001); Reeves, 209 N.W.2d at 22. We determine that this is a case involving joint possession, as defendant lived in the rented room with Leetha Jones. Where the accused has been in joint possession, the following two elements must be established by proof: (1) knowledge of the presence of the substances on the premises and (2) the ability to maintain control over them Webb 648 N.W.2d at 80.

The proof in cases of joint possession of premises with regard to the knowledge element may include evidence of actual knowledge of the accused, evidence of incriminating statements of the accused, or circumstantial evidence that would allow a jury to lawfully infer knowledge by the accused of the presence of the substances on the premises. Id. at 78-79. The proof necessary with regard to the control element may include incriminating statements made by the defendant, incriminating actions of the defendant upon the police’s discovery of drugs among or near the defendant’s belongings, the defendant’s fingerprints on the packages containing the drugs, or any other circumstances linking the defendant to the drugs. Id. (citing Emile F. Short, Annotation, Conviction of Possession of Illicit Drugs Found in Premises of Which Defendant was in Nonexclusive Possession, 56 A.L.R.3d 948, 1974 WL 35135 (1974)).

With these principles of constructive possession in mind, we turn to the record evidence in this case. The drugs were found in close proximity to defendant’s possessions. Defendant owned all the property in the bedroom. The hole in which the crack cocaine was found was near the defendant’s bed. Additionally, on defendant’s nightstand, the police found defendant’s picture identification next to a number of plastic baggies. Police testified that such baggies are consistent with packaging drugs for sale. The record also shows that defendant admitted to police that he was a drug dealer, as he sold marijuana. Furthermore, defendant admitted that he had delivered crack cocaine as payment for rent in the three weeks that he had been renting the bedroom. Based on this evidence a rational trier of fact could have conceivably found that defendant had constructive possession of the crack cocaine.

Defendant next argues that the State failed to prove beyond a reasonable doubt that defendant had the intent to deliver the crack cocaine. Because it is difficult to prove intent by direct evidence, proof of intent usually consists of circumstantial evidence and the inferences that can be drawn from that evidence State v. Adams, 554 N.W.2d 686, 692 (Iowa 1996). A number of factors may be utilized to infer whether intent is present, including the quantity of drugs, the manner of packaging, and any other circumstantial evidence that would allow a jury to lawfully infer such intent. Id. The crack cocaine, as packaged, weighed 4.4 grams. The crack cocaine was divided into twelve rocks which were individually-wrapped in a manner typical for drug trafficking. Defendant admitted that he sold marijuana. Defendant also admitted that he had previously delivered crack cocaine as payment for rent. Taken together, this evidence was enough that a rational trier of fact could have conceivably found that defendant had the intent to deliver the crack cocaine.

The evidence was sufficient to support a conviction for possession with intent to deliver a controlled substance.

B. Supplemental Jury Instruction.
Defendant claims the district court erred by failing to give the supplemental jury instruction defendant requested. We review a district court’s decision not to give the jury a supplemental instruction for abuse of discretion. See Iowa R. Crim. P. 2.19(5)(f) (making Iowa Rule of Civil Procedure 1.925 applicable in criminal proceedings); State v. Watkins, 463 N.W.2d 15, 18-19 (1990); State v. Query, 594 N.W.2d 438, 445
(Iowa Ct.App. 1999). “An abuse of discretion occurs when the trial court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable.”

State v. Sayles, 662 N.W.2d 1, 8 (Iowa 2003).

The initial jury instruction was a correct statement of the law regarding possession of a controlled substance with intent to deliver. It was not an abuse of discretion for the district court to refer the jury back to the initial instruction, rather than give a supplemental instruction. See Query, 594 N.W.2d at 445 see also State v. Wissing, 528 N.W.2d 561, 564-65 (Iowa 1995).

AFFIRMED.