STATE OF IOWA, Plaintiff-Appellee, vs. DERRICK LAMONT COLE, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-735 / 05-1296
Filed December 28, 2006
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DERRICK LAMONT COLE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, James C.
Bauch, Judge.
Derrick Cole appeals his judgment and sentence for possession of
simulated controlled substances with intent to deliver. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Brad P. Walz, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Vaitheswaran, J., and Robinson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
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VAITHESWARAN, J.
Derrick Lamont Cole appeals his judgment and sentence for two counts of
possession of simulated controlled substances with intent to deliver. Iowa Code
§§ 124.401(1)(c) (2003) (cocaine base), 124.401(1)(d) (marijuana). He raises (1)
a challenge to the sufficiency of the evidence and (2) an ineffective assistance of
counsel claim.
I. Sufficiency of the Evidence
Cole maintains the district court erred in denying his motion for judgment
of acquittal. Specifically, he contends there was insufficient evidence to show
that he intended to deliver the substances that he was charged with possessing.
See State v. Shanahan, 712 N.W.2d 121, 134 (Iowa 2006) (setting forth standard
of review).
The jury was instructed that, to find Cole guilty of the two crimes, the State
would have to prove the following:
(1) That on or about the 7th day of September, 2004, the defendant
possessed a simulated controlled substance with the intent to
deliver.
(2) That the defendant knew that the substance he possessed was
a simulated controlled substance.
A jury could have found the following facts. A Waterloo police officer received a
report that a person matching the description of a robbery suspect was just seen
in a store. The officer located the suspect, whom he recognized as Cole, talking
to another individual near a car. Cole told the officer that he was speaking to his
cousin. The person he was speaking to, however, said he did not know Cole and
Cole was not his cousin. See State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993) (“A
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false story told by a defendant to explain or deny a material fact against him is by
itself an indication of guilt and the false story is relevant to show that the
defendant fabricated evidence to aid his defense.”). The person testified that
Cole asked him whether he was “looking for anything.” He took this to mean that
Cole was trying to sell him drugs. An officer experienced in investigating drugrelated crimes testified that the question “are you looking for anything” is a way of
soliciting interest in buying drugs. See State v. Grant, ___ N.W.2d ___, ___
(Iowa 2006) (“[I]n controlled-substance prosecutions opinion testimony by law
enforcement personnel experienced in the area of buying and selling drugs may
be offered as evidence for purposes of aiding the trier of fact in determining
intent.”).
Cole consented to a search of his person. The officer discovered a plastic
baggie in his pocket containing what looked like marijuana. There was testimony
that the packaging was consistent with the way marijuana is normally sold on the
streets. According to an officer it “would be referred to probably common in the
street as a dime bag of marijuana.” See id. at ___ (“[T]he intent to deliver a
controlled substance may be inferred from the manner of packaging drugs . . . .”).
During the search, another plastic baggie fell out of Cole’s pocket. This
baggie contained a white substance that the officer believed to be crack cocaine.
There was testimony that dosage units of crack cocaine are normally packaged
for sale in this fashion. Id.
Cole was arrested. In a videotaped statement, he told an officer that the
drugs found on him were fake and he was selling them to support his drug habit.
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A jury reasonably could have found from these facts that Cole intended to
deliver the simulated substances he had in his possession. Accordingly, the
district court did not err in denying Cole’s motion for judgment of acquittal.
II. Ineffective Assistance of Counsel
Cole argues “combined errors of counsel in this case resulted in a speedy
trial violation.” He points to the untimely filing of a motion to suppress, the filing
of “two frivolous motions” that were later withdrawn, and counsel’s failure to
move for a mistrial “when the court improperly continued the trial dates.”
We preserve this claim for postconviction relief to “allow full development
of the facts surrounding counsel’s conduct.” State v. Stewart, 691 N.W.2d 747,
750 (Iowa Ct. App. 2004).
AFFIRMED.
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