IN THE COURT OF APPEALS OF IOWA
No. 2-801 / 01-1749
Filed March 26, 2003
STATE OF IOWA,
PATRICIA LYNN BASH,
Appeal from the Iowa District Court for Dickinson County, Charles H.
Patricia Bash appeals following her conviction and sentence for
possession of marijuana. AFFIRMED.
Linda Del Gallo, State Appellate Defender, Nan Jennisch, Assistant
Appellate Defender, and Kami M. Henke, Drake Student Intern, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney
General, and Edward Bjornstad, County Attorney, for appellee.
Considered by Vogel, P.J., and Zimmer, and Hecht, JJ.
Patricia Bash appeals following her conviction and sentence for
possession of marijuana. We affirm.
Background Facts and Proceedings.
On January 17, 2001, Spirit Lake police officers executed a search
warrant at an apartment shared by Patricia Bash, her husband Kevin, and her
son. Officers found Patricia and Kevin sitting on the bed in their
bedroom. Officer Jeff Hanson read Patricia the search warrant, which
authorized them to search for, among other things, controlled substances
and a safety deposit box. Patricia directed Officer Hanson to a cardboard
box on Kevin's nightstand, which contained marijuana, a marijuana bong
sitting next to the bed, and a lock box.
Based on the items discovered in the bedroom, the State charged
Patricia with possession of marijuana, in violation of Iowa Code section
124.401(5) (2001). Following a trial, the jury found her guilty as
charged. The court sentenced her to a suspended sentence of thirty days
and imposed a fine of $250. Patricia appeals.
Patricia first asserts the court erred in finding sufficient evidence
to support her conviction for possession of marijuana. We review
challenges to the sufficiency of the evidence supporting a guilty verdict
for correction of errors at law. State v. Heard, 636 N.W.2d 227, 229 (Iowa
2001). We will uphold a verdict if substantial record evidence supports
it. Id. Evidence is substantial if it would convince a rational fact
finder that the defendant is guilty beyond a reasonable doubt. Id. We
review the evidence in the light most favorable to the State, including
legitimate inferences and presumptions that may fairly and reasonably be
deduced from the evidence in the record. Id. The court considers all the
evidence in the record, not just the evidence that supports the verdict.
Id. The State must prove every fact necessary to constitute the crime with
which the defendant is charged. State v. Gibbs, 239 N.W.2d 866, 867 (Iowa
Possession of a controlled substance requires proof of three
elements: (1) the accused exercised dominion and control (i.e. possession)
over the contraband, (2) the accused had knowledge of the contraband's
presence, and (3) the accused had knowledge that the material was a
narcotic. State v. Reeves, 209 N.W.2d 18, 21 (Iowa 1973). Possession can
be actual or constructive. State v. Maghee, 573 N.W.2d 1, 10 (Iowa 1997).
A person is in actual possession of something on or around her person when
she "has direct physical control" of it. Id. In this case, Patricia did
not have direct physical control of the marijuana; therefore, the State
must establish she had constructive possession of the drugs. See State v.
Nickens, 644 N.W.2d 38, 41 (Iowa Ct. App. 2002).
On appeal, Patricia alleges in particular the evidence was
insufficient to prove she "constructively possessed" the marijuana. Where
the accused has not been in exclusive possession of the premises but only
in joint possession, 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. Reeves, 209 N.W.2d at
23. A number of factors may support a finding that a defendant had
knowledge of the presence of drugs and the right to exercise control over
them as well as access and control of the place and premises where the
drugs are found. See State v. Webb, 648 N.W.2d 72, 79 (Iowa 2002). Such
factors 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 personal belongings, the defendant's
fingerprints on the packages containing the drugs, and any other
circumstances linking the defendant to the drugs. Id.
Turning to the evidence at hand, there is no dispute Patricia jointly
possessed the apartment, including the bedroom where the drugs were found,
with her husband. However, the jury could not impute the requisite
knowledge and ability to maintain control merely from this joint possession
of the apartment. See Id. Rather, the State had the burden to prove such
knowledge and ability by other evidence. Id. Police informed Patricia
they were searching for "marijuana and controlled substances". Patricia
claimed she told Officer Hanson, "if there is anything here, it would be on
Kevin's side of the bed." Officer Hanson testified Patricia told him, "she
could show me where the stuff is. [I]t's on his nightstand in a cardboard
box, that it's Kevin's stuff, and that his bong . . . was sitting on the
floor next to the bed." The drugs were subsequently located just as
Patricia had described. While her statement is one that may not be strong
enough to infer knowledge, Officer Hanson's version was clearly one that
would support Patricia knew there were drugs in the box. The jury was free
to believe either version. See State v. Liggins, 557 N.W.2d 263, 269 (Iowa
1996) ("A jury is free to believe or disbelieve any testimony as it chooses
and give as much weight to the evidence as, in its judgment, such evidence
should receive."). Furthermore, while denying the right to control the
drugs she claimed belonged exclusively to her husband, Patricia admitted
she physically could have taken the drugs and flushed them down the toilet,
thus establishing her ability to control the drugs. She admitted knowledge
of the smell of marijuana and that marijuana had been in the home in the
past. Based on this evidence, we conclude there was sufficient evidence to
establish Patricia constructively possessed the marijuana and therefore the
district court did not err in denying her motion for judgment of acquittal.
The district court gave the following instruction to the jury:
The word "possession" includes actual as well as constructive
possession, and also sole as well as joint possession.
A person who has direct physical control of something on or around her
person is in actual possession of it.
A person who is not in actual possession, but who has knowledge of the
presence of something and has the authority or right to maintain
control of it either alone or together with someone else, is in
constructive possession of it.
If one person alone has possession of something, possession is sole.
If two or more persons share possession, possession is joint.
On appeal Patricia asserts the district court failed to properly
instruct the jury on the definition of constructive possession. Patricia
argues the jury should have been instructed that "mere knowledge or
proximity to the substance is insufficient to meet the State's burden in
proving constructive possession." She claims without such language the
jury could improperly infer that Patricia knew of the marijuana and had
control over it by the mere joint possession of the apartment. We agree
that knowledge of the presence of the marijuana and the ability to maintain
control over it may not be inferred but must be established by proof.
State v. Reeves, 209 N.W.2d 18, 23 (Iowa 1973). However, we reject her
argument as the evidence in this record established that Patricia had
actual knowledge drugs were in the bedroom and the ability to exercise
control over them. Therefore, the jury instruction was proper.
Evidence of Knowledge.
Patricia argues counsel provided ineffective assistance by failing to
specifically argue in her motion for judgment of acquittal that the State
had provided insufficient evidence of knowledge, and in particular that she
did not know the marijuana was among her husband's possessions. We review
this constitutional claim de novo. See State v. Brooks, 555 N.W.2d 446,
448 (Iowa 1996). Patricia must prove two elements to succeed on this
claim: (1) counsel failed to perform an essential duty; and (2) this
failure resulted in prejudice. See State v. Ceaser, 585 N.W.2d 192, 195
(Iowa 1998). Such claims are usually preserved for postconviction relief
actions; but where the record is adequate, we will consider them on direct
appeal. See id. We think the record here is sufficient to determine
whether Patricia's counsel rendered ineffective assistance.
As noted above, an essential element of possession of a controlled
substance is that the accused had knowledge of the contraband's presence.
See Reeves, 209 N.W.2d at 21. We conclude Patricia suffered no prejudice
because of counsel's failure to argue she did not know the marijuana was
among her husband's possessions. See State v. Westeen, 591 N.W.2d 203, 211
(1999). Here, Patricia testified she knew what marijuana was, how it
smelled when smoked, and that it had been in her house "in the past." She
was aware her husband had previously stored marijuana in the box and she
admitted that if there was marijuana in the house at that time, it would
have been in a box, on the nightstand in their bedroom. Officer Hanson
provided testimony that clearly established Patricia's knowledge of the
presence of the drugs on the night in question. Accordingly, the record
contains substantial evidence supporting her knowledge of the presence
marijuana and its nature as a drug. Patricia suffered no prejudice by her
counsel's failure to articulate this claim in her motion for judgment of