No. 4-116 / 03-0956Court of Appeals of Iowa.
Filed March 10, 2004
Appeal from the Iowa District Court for Black Hawk County, Leonard D. Lybbert, Judge.
Tomien Harris appeals from his convictions for possession of cocaine base with the intent to deliver and failure to affix a drug tax stamp. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert Ewald, Assistant Attorney General, Thomas Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
ZIMMER, P.J.
Tomien Harris appeals from his convictions for possession of cocaine base with the intent to deliver and failure to affix a drug tax stamp. He claims his trial counsel was ineffective for failing to obtain an express ruling on his motion for judgment of acquittal. We affirm.
I. Background Facts Proceedings
On August 11, 2002, police officers Aaron McClelland and Joseph Saunders were patrolling the area around Crystals Bar in Waterloo. At approximately 1:30 a.m. they noticed a large crowd containing quite a few juveniles in the parking lot of Crystals so they decided to stop. The officers parked their squad car about a hundred yards from the bar and started walking towards it. As they approached the parking lot next to the bar they noticed a man standing in front of a car near the bar’s front door. The officers thought the man looked nervous and fidgety and they noticed that he was keeping an eye on what they were doing. When the officers were within about twenty feet of the man they saw him drop or throw a light colored item toward the ground near his feet. As they got closer they saw him attempting to kick something underneath the car. Then the man bent over, pushed the item under the car with his hand, and stood back up.
Officer Saunders walked to the rear of the car, while officer McClelland approached the man at the front of the vehicle. McClelland stood two feet away from the man, looked directly at his face, and asked him how he was doing. The man did not respond. McClelland then shined his flashlight on the ground in front of the man. At that point, the man turned quickly to the right and walked into the bar.
After the man entered the bar, McClelland looked under the car and found a white napkin wrapped around a baggie containing twenty rocks of crack cocaine. McClelland immediately radioed other officers in the area and told them to go to the rear of the bar and look for a black male in dark clothing. Officer Saunders added to McClelland’s description by mentioning the man was wearing a black t-shirt and blue jeans.
Officer Kristin Day responded to the call. As she was coming around a corner so she could view the area back of Crystals bar, she saw a black man wearing a black t-shirt walking away from the bar’s back door. The man watched officer Day as he walked across the street and entered a different bar called Old Timers. Approximately five to ten seconds after the man entered Old Timers, he exited the bar by the same door and continued walking. While keeping visual contact with the man, officer Day got into officer Cory Allspach’s squad car. When the officers caught up with the man they stopped him and took him back to McClelland.
Officer McClelland identified the man as the person he had seen a few minutes earlier shoving a bag of crack cocaine under a vehicle. McCelland arrested the man, who was later identified as Tomien Harris. The defendant was nervous and sweating profusely when he was arrested. Harris denied ever being in front of Crystals Bar. However, when McClelland later asked him at the jail why he was bent over in front of the car, Harris replied that his back hurt. When McClelland pointed out that his statement was inconsistent with what he had previously said, Harris refused to answer anymore questions.
On August 21, 2002, the State charged Harris with possession of cocaine base with the intent to deliver, a class “B” felony, and being a second offender, in violation of Iowa Code sections 124.401(1)(b) and 124.411 (2001) (count I). He was also charged with failure to affix a tax stamp and being a habitual offender, in violation of Iowa Code sections 453B.12, 902.8, and 902.9
(count II). On November 5, 2002, the State filed a motion to amend the trial information to change count I to a class “C” felony. On January 21, 2003, the State filed another motion to amend the trial information to change count I to include a section 902.8 habitual offender enhancement.
On January 21, 2003, a jury trial commenced, which resulted in a hung jury. On April 15, 2003, the State filed another motion to amend the trial information. The final trial information charged Harris with possession of cocaine with the intent to deliver, being a second offender, and being a habitual offender, in violation of Iowa Code sections 124.401(1)(c), 124.411, 902.8, and 902.9, and with failure to affix a drug tax stamp and being a habitual offender, in violation of Iowa Code sections 453B.12, 902.8, and 902.9.
On April 29, 2003, a second jury trial commenced. Following the State’s case, Harris moved for a judgment of acquittal. The court reserved ruling on the motion until after the jury returned its verdict. The jury found Harris guilty on both counts. The trial court never ruled on Harris’s motion for judgment of acquittal. On May 29, 2003, the court sentenced Harris to thirty years on count I and fifteen years on count II. The sentences were ordered to be served concurrently. Harris appeals.
II. Ineffective Assistance of Counsel
Harris claims his trial counsel was ineffective for failing to obtain an express ruling on his motion for judgment of acquittal. Generally, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel’s conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). We find that the record in this case is sufficient to evaluate Harris’s claim.
We review claims of ineffective assistance of counsel de novo State v. Breuer, 577 N.W.2d 41, 44 (Iowa 1998). Harris bears the burden of demonstrating ineffective assistance of counsel State v. Morgan, 559 N.W.2d 603, 612 (Iowa 1997). A defendant receives ineffective assistance of counsel when (1) his counsel fails to perform an essential duty and (2) prejudice results State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). Harris’s ineffective assistance of counsel claim may be disposed of if he fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614
(Iowa 1997).
In his motion for judgment of acquittal, Harris argued the State’s evidence was insufficient to convict him. As we have mentioned, the trial court reserved ruling on the motion. After the jury returned guilty verdicts on both counts, the record reveals that Harris’s counsel had the jury polled. Following polling, the court found the verdict to be in proper form and entered it into the record of the case. A few seconds later, Harris’s counsel approached the bench and an off-the-record discussion was held.[1] Back on the record and out of the jury’s presence, Harris admitted that he was a habitual and second offender for purposes of sentencing. The court then dictated a trial memorandum which included the following statement:
This case was tried to the jury set out in the clerk’s jury list on April 29th, 30th, and today, May 1st. The jury returned with a verdict of guilty to both counts at approximately 3 p.m. this date. At the defendant’s request the jury was polled. All the jurors agree to the verdict. None disagreed with it. The court found the verdict to be in proper form and ordered it entered in the records of this case.
Harris was sentenced about a month later by the same judge. At sentencing, the court stated:
Tomien Montrice Harris, based on all the information contained in the presentence report, all the information and contentions made by counsel, your own statements, and based on the facts of the underlying case, I find no reason or cause for not finding you guilty, and I do so find you guilty of possession of a controlled substance, cocaine base, with intent to deliver, and . . . guilty of the crime of failure to have a drug stamp affixed to the substance as charged in Count II.
There is no dispute that the record indicates the trial court never made an oral or written ruling on Harris’s motion for judgment of acquittal. Harris contends his trial counsel breached an essential duty by failing to obtain a ruling on his motion. He submits that his counsel’s failure to act precludes him from directly challenging the sufficiency of the evidence on appeal. Harris claims there is a reasonable probability that the result of the proceeding would have been different if his counsel secured a ruling on his motion because the State’s case was weak and there was not sufficient evidence in the record to convict him.
The State responds to the breach of duty argument Harris advances by suggesting that the trial court’s silence regarding the motion should be construed as an implied denial under the facts of this case. The State argues the facts imply that at some point the court simply decided not to grant the motion for judgment of acquittal because it had no merit. According to the State, this argument is reinforced by the court’s official pronouncement of guilt and sentence. The State submits defense counsel did not breach a duty of preserving a sufficiency of the evidence issue for direct appeal because the district court impliedly denied the motion for judgment of acquittal.[2]
In this case, we find it unnecessary to decide whether a breach of an essential duty occurred when defense counsel failed to request an on-the-record ruling on his motion for judgment of acquittal. We reach this conclusion because the record reveals Harris has failed to establish prejudice.
In determining whether Harris’s motion for judgment of acquittal would have been successful if trial counsel had secured a ruling on the motion, the relevant inquiry is whether the evidence presented at trial is sufficient to sustain a conviction. State v. Breitbach, 488 N.W.2d 444, 446 (Iowa 1992). We are bound by the fact-finder’s decision unless the verdict is not supported by substantial evidence. State v. Walker, 574 N.W.2d 280, 284 (Iowa 1998). Evidence is substantial if it could convince a rational fact-finder the defendant is guilty beyond a reasonable doubt. State v. Sandborn, 564 N.W.2d 813, 816 (Iowa 1997).
We determine there was substantial evidence in the record to support Harris’s convictions. Officer McClelland viewed Harris from a distance of about two feet. He unequivocally identified Harris as the person he saw, drop, kick, and push drugs under a car. This evidence by itself is sufficient to sustain Harris’s conviction. However, we also note that McClelland’s identification was further corroborated by officer Day’s testimony that Harris was acting suspiciously before she detained him and by Harris’s inadvertent admission that he had bent over in front of the car because his “back hurt.” Consequently, even if Harris’s attorney had obtained an express ruling on his motion for judgment of acquittal, the motion would not have been successful. Because Harris was not prejudiced, he has failed to show he received ineffective assistance of counsel. Accordingly, we affirm his convictions.
AFFIRMED.