STATE OF IOWA, Plaintiff-Appellee, vs. STATE v. PEREZ, Defendant-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 9-523 / 08-0991
Filed August 6, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
STATE v. PEREZ,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark D. Cleve,
Judge.
Jorge Martinez Perez appeals following conviction and sentence for
possession of a controlled substance with intent to deliver and failure to possess
a tax stamp. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant
Attorney General, Michael J. Walton, County Attorney, and Kelly Cunningham,
Assistant County Attorney, for appellee.
Considered by Vaitheswaran, P.J., Eisenhauer, J., and Huitink, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
2
HUITINK, S.J.
Jorge Martinez Perez appeals following conviction and sentence for
possession of a controlled substance (more than 500 grams of powder cocaine)
with intent to deliver and failure to possess a tax stamp. Perez argues the district
court erred in failing to grant his motion in arrest of judgment when there was
insufficient evidence to support his conviction on the drug possession charge.
He further contends his trial counsel was ineffective in failing to request a limiting
instruction regarding his involvement in an earlier controlled buy and in failing to
request severance of his trial. We affirm.
I. Background Facts and Proceedings.
This case began when Davenport police officers learned that a Hispanic
male driving a champagne-colored Chevrolet Silverado with California license
plates was selling cocaine out of 524 North Lincoln Court, an older home that
had been converted to four separate apartments. On February 2, 2008, officers
conducted a traffic stop on the Silverado as it left the apartment building. The
driver, Miguel Trujillo, matched the description of the drug dealer and the
Silverado was registered in his name. A drug dog conducted an exterior sniff of
the Silverado, but did not alert, and Trujillo was allowed to leave.
Officers
continued to survey the apartment building, but did not see the Silverado again
after the stop.1
Thereafter, officers developed a confidential informant to engage in a
controlled buy and provide more information about the drug operation at the
apartment building. On February 7, 2008, the confidential informant drove to the
1
Officers later learned Trujillo began driving his girlfriend‟s vehicle after the stop.
3
apartment building to buy cocaine. Officers watched nearby from their vehicles
as a male walked down the driveway from the apartment building, approached
the confidential informant‟s vehicle, and sold the informant one-fourth ounce of
cocaine for $180 of the police department‟s serialized bills. In order to identify
the seller, an undercover officer drove by and the two looked directly at each
other. The officer later identified the seller as Jorge Perez.
After the drug deal, Perez walked back in the direction of the apartment
building, but entered the building using the back entrance. In order to determine
the apartment Perez had come from, several officers knocked on the doors of
each apartment using the ruse that they were investigating recent car burglaries
in the area. No one answered at apartments 1, 2, and 4. Trujillo answered the
officers‟ knocks at apartment 3 and initially answered the officers‟ questions, but
then went inside the apartment to get Perez to translate for him. The officers
observed Trujillo was very nervous, his body was very shaky, and his voice was
trembling, and that Perez seemed to be in a hurry and wanted to officers to leave
as quickly as possible.
Based on Trujillo‟s and Perez‟s behavior, the officers believed there were
drugs in the building. After reporting their findings, the officers returned to the
apartment building ten to fifteen minutes later to secure the residence and obtain
permission to search the apartment.2 Trujillo and Perez allowed the officers into
the apartment, and the officers immediately noticed a razor with apparent
cocaine residue on the kitchen table. Trujillo and Perez, along with Trujillo‟s
2
Due to the language barrier, the officers also secured a search warrant for the
apartment building.
4
daughter and her boyfriend, Claudia Trujillo and Andres Garcia, were kept inside
the apartment until a search warrant was obtained.
With the help of a drug dog, officers eventually discovered more than 500
grams of cocaine in various places inside and outside the apartment. Officers
also found two digital scales and a razor blade with cocaine residue on them, and
plastic bags, wrap, and a heat sealer consistent with that used to package the
drugs found at the apartment.
Among the occupants‟ personal property, the
officers found multiple cell phones, and the memory of one contained several
calls from the number the confidential informant had used to set up the earlier
controlled buy. Officers seized $612 in cash from Trujillo, $160 in cash from
Garcia, $378 in cash from Claudia Trujillo, but no money from Perez.
The
officers did not uncover the $180 in serialized bills used in the controlled buy
earlier that evening.
On February 15, 2008, Perez was charged with possession of a controlled
substance with intent to deliver and failure to affix a drug tax stamp. Trujillo,
Garcia, and Claudia Trujillo were similarly charged.3 Perez pleaded not guilty
and demanded his right to a speedy trial. Prior to trial, Perez filed a motion in
limine seeking to exclude evidence regarding any prior criminal record or acts
and hearsay statements. He also joined codefendant Garcia‟s motion in limine to
exclude evidence of the earlier controlled buy. The district court granted Perez‟s
motion with respect to the hearsay statements, but did not rule on the remainder
of the motions.
3
The court later dismissed charges against Garcia and Claudia Trujillo.
5
Following a jury trial, Perez was convicted as charged.4 Thereafter, Perez
filed a motion in arrest of judgment or for a new trial, raising a number of
evidentiary and procedural arguments.
The court denied his motion and
sentenced Perez to an indeterminate term of imprisonment not to exceed fifty
years for the drug charge and up to five years on the tax stamp charge, to be run
concurrently. Perez now appeals.
II. Scope and Standard of Review.
We conduct a de novo review of alleged constitutional violations. State v.
Decker, 744 N.W.2d 346 (Iowa 2008). We therefore conduct a de novo review of
ineffective assistance of counsel claims. State v. Maxwell, 743 N.W.2d 185, 195
(Iowa 2008). Unless the record on direct appeal is adequate to address these
issues, a claim of ineffective assistance of counsel is generally preserved for
postconviction proceedings. State v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008).
In all other matters, we review the court‟s actions for corrections of errors
at law. Iowa R. App. P. 6.4; State v. Keeton, 710 N.W.2d 531, 532 (Iowa 2006).
In reviewing challenges to the sufficiency of the evidence supporting a guilty
verdict, we consider all of the evidence in the record in the light most favorable to
the State and make all reasonable inferences that may fairly be drawn from the
evidence. Keeton, 710 N.W.2d at 532. A jury‟s verdict is binding on appeal if it is
supported by substantial evidence. Evidence is substantial when a reasonable
mind would recognize it sufficient to reach the same findings.
State v.
Moorehead, 699 N.W.2d 667, 671 (Iowa 2005).
4
The jury also found Trujillo convicted as charged. Trujillo has appealed his conviction
and sentence. His appeal is currently before our court in State v. Trujillo, No. 08-1073.
6
III. Merits.
A. Sufficiency of the Evidence.
The jury was instructed that the State had to establish the following in
order to prove Perez possessed cocaine with intent to deliver:
1. On or about the 8th day of February, 2008, the defendant
knowingly possessed powder cocaine.
2. The defendant knew that the substance possessed was
powder cocaine.
3. The defendant possessed the substance with the specific
intent to deliver the controlled substance.
The jury was further instructed they could convict Perez either as the principal or
as an aider and abettor. Perez contends there was insufficient evidence to prove
that he had possession of the drugs in question, or to prove that he aided and
abetted anyone in doing so.
Because no drugs were found on Perez‟s person, the State had to prove
Perez had constructive possession of the drugs.
Possession is constructive
when the defendant has knowledge of the presence of the controlled substance
and the authority or right to maintain control over it. See State v. Carter, 696
N.W.2d 31, 38 (Iowa 2005); State v. Bash, 670 N.W.2d 135, 138 (Iowa 2003).
The peculiar facts of each case determine whether the defendant had
constructive possession of the controlled substance. State v. Webb, 648 N.W.2d
72, 79 (Iowa 2002). “Constructive possession cannot rest on mere proximity to
the controlled substance.” Carter, 696 N.W.2d at 40.
[T]he authority or right to maintain control includes something more
than the “raw physical ability” to exercise control over the controlled
substance. The defendant must have some proprietary interest or
an immediate right to control or reduce the controlled substance to
the defendant‟s possession.
7
Bash, 670 N.W.2d at 139. We consider a number of factors in determining
whether a defendant had constructive possession, including: (1) the defendant‟s
incriminating statements, (2) the defendant‟s incriminating actions upon the
police‟s discovery of drugs among or near the defendant‟s personal belongings,
(3) the defendant‟s fingerprints on packages containing drugs, and (4) any other
circumstances linking the defendant to the drugs. State v. Kemp, 688 N.W.2d
785, 789 (Iowa 2004).
The record contains substantial evidence that Perez had constructive
possession of the cocaine found in and around the apartment building. Perez
brought one-fourth ounce of cocaine out of the apartment building and sold it to
the police department‟s confidential informant.
Perez was present in the
apartment building when officers searched the home later in the day.
In
speaking with officers upon the officer‟s arrival at Trujillo‟s apartment, Perez
seemed to be in a hurry and wanted the officers to leave as quickly as possible.
Thereafter, officers found more than 500 grams of cocaine in various places
inside and outside the apartment. Officers also found plastic bags, wrap, and a
heat sealer consistent with that used to package the drugs found at the
apartment; two digital scales and a razor blade with cocaine residue on them;
and a cell phone containing the number the confidential informant had used to
set up the earlier controlled buy.
Perez‟s exercise of control over the cocaine in making the sale to the
confidential informant demonstrated his ability to exercise control over the
cocaine in and around the apartment building. He was not merely a passive
8
observer in the drug operation, but rather, an active participant. After considering
all of the factors listed above, we conclude substantial evidence supported the
jury‟s verdict that Perez was guilty as a principal. Accordingly, we affirm as to
this issue.
Alternatively, we find substantial evidence supports the finding that Perez
was guilty as an aider and abettor.5 To support a conviction based on the theory
of aiding and abetting, the record must show Perez assented to or lent
countenance and approval to the criminal act either by active participation or by
encouraging in some manner prior to the time of its commission. State v. Smith,
739 N.W.2d 289, 293 (Iowa 2007). While mere presence at the scene of a crime
by itself is insufficient to prove aiding and abetting, it “need not be shown by
direct proof. It may be inferred from circumstantial evidence including presence,
companionship and conduct before and after the offense is committed.” Fryer v.
State, 325 N.W.2d 400, 406 (Iowa 1982).
Officers observed Perez exit Trujillo‟s apartment building with drugs on his
person, sell $180 worth of cocaine to the confidential informant, and reenter the
apartment building through the back entrance. Perez handled the drugs and “not
only lent countenance and approval to the delivery of a controlled substance, he
made the transaction possible.”
State v. Allen, 633 N.W.2d 752, 757 (Iowa
2001). When officers arrived to search Trujillo‟s apartment later that evening,
Perez was present in the home. Officers uncovered cocaine, a razor blade and
5
Perez alleges the theory of aiding and abetting was not properly submitted to the jury.
We find this argument to be without merit. As jury instruction no. 12 stated, “All persons
involved in the commission of a crime, whether they directly commit the crime or
knowingly „aid and abet‟ its commission, shall be treated the same way.”
9
digital scale with cocaine residue, and other tools and materials used for drug
packaging in and around the apartment building.
We conclude the record
contains substantial evidence that Perez had constructive possession of cocaine
as an aider and abettor. We affirm as to this issue.
B. Ineffective Assistance of Counsel.
Perez argues his counsel was ineffective (1) in failing to request a limiting
instruction regarding his involvement in an earlier controlled buy and (2) in failing
to request severance of his trial.6 To establish a claim of ineffective assistance of
counsel, a defendant must prove (1) counsel failed to perform an essential duty
and (2) prejudice resulted to the extent it denied the defendant a fair trial.
Maxwell, 743 N.W.2d at 195. Ordinarily, we preserve ineffective assistance of
counsel claims for postconviction proceedings to allow the facts to be developed
and give the allegedly ineffective attorney an opportunity to explain his or her
conduct, strategies, and tactical decisions. See Bearse, 748 N.W.2d at 214;
State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). We conclude the record
here is inadequate to address Perez‟s claims. We therefore preserve the claims
for possible postconviction relief proceedings.
IV. Conclusion.
We affirm Perez‟s conviction and sentence and preserve his claims of
ineffective assistance of counsel for a possible postconviction proceeding.
AFFIRMED.
6
Perez raises this second ineffective assistance of counsel claim in his pro se brief. The
other arguments Perez raises in his pro se brief are the same as those submitted by his
counsel and addressed by this court.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
