State of Iowa v. Tremayne Latoine Thomas

IN THE SUPREME COURT OF IOWA
No. 12–1491
Filed May 30, 2014
STATE OF IOWA,
Appellee,
vs.
TREMAYNE LATOINE THOMAS,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, Thomas G.
Reidel, Judge.
The State seeks further review of a court of appeals decision
holding that the State presented insufficient evidence to support the
defendant’s convictions for possession of cocaine and marijuana with
intent to deliver. DECISION OF COURT OF APPEALS VACATED;
DISTRICT COURT JUDGMENT AND SENTENCE AFFIRMED.
Lauren M. Phelps of Lauren M. Phelps, P.L.L.C., Davenport, for
appellant.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson (until
withdrawal) and Benjamin M. Parrott, Assistant Attorneys General,
Des Moines, and Michael J. Walton, County Attorney, and Kelly G.
Cunningham, Assistant County Attorney, Davenport, for appellee.
2
MANSFIELD, Justice.
We are asked to decide today whether substantial evidence
supports the defendant’s convictions for possession of marijuana and
crack cocaine with intent to deliver. After police entered an apartment
occupied by several individuals, the defendant and one other person ran
into the bedroom. The defendant tried to hold the bedroom door shut to
prevent the police from entering. Eventually, an officer was able to force
open the door. As the defendant attempted to engage in misdirection,
police noticed the presence of sale packages of marijuana and crack
cocaine in the area where the defendant had been standing and holding
back the door. The defendant then gave a false name to the officers and
falsely claimed he had fled from them because he had an outstanding
warrant. Meanwhile, the other person who had run into the bedroom
and the renter of the apartment both denied having anything to do with
the drugs. Based on these facts, the jury found the defendant guilty of
possession with intent to deliver, but the court of appeals reversed for
insufficient evidence. On further review, we find the evidence sufficient
to sustain a jury verdict of guilt and therefore reinstate the defendant’s
convictions.
We also reject, separately, the defendant’s claim of Batson error in
jury selection. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90
L. Ed. 2d 69 (1986). We uphold the district court’s finding that the State
provided a race-neutral explanation for striking a potential alternate
juror.
I. Background Facts and Proceedings.
The following facts were presented to the jury. The defendant
Tremayne Thomas and Marissa Ledbetter stood outside the Davenport
3
apartment of Raymond Norvell late in the evening of March 1, 2012.
Norvell’s apartment was a ground-level, one-bedroom apartment.
Officers from the Davenport Police Department, in a foot pursuit of
a suspect in the area, noticed Thomas and Ledbetter shouting and heard
loud noise coming from a window of Norvell’s apartment. The officers
inquired about the activity, but Thomas and Ledbetter assured them
there was no problem. Thomas and Ledbetter then moved inside the
apartment. One of the officers went to the door and was met by Norvell,
who identified himself as the resident of the apartment. Norvell
reassured the officer everything was fine, and the officers continued in
pursuit of their suspect.
A few minutes later, the officers returned to the area outside
Norvell’s apartment and again heard yelling from the window. One of the
officers approached the window. As the officer watched, a man later
identified as Isaiah Henderson came into view, standing next to the
kitchen microwave in the background of the scene. The officer testified
he observed Henderson pull a marijuana blunt from his sweatshirt and
begin smoking it.
Moments later, a man later identified as Brett Dennis approached
Norvell’s apartment. The officers followed Dennis toward the door and
noted the smell of marijuana smoke wafting from the apartment when
the door opened. The officers decided to attempt to seize the marijuana,
so they quickly knocked and announced themselves and entered the
apartment.
The apartment had two rooms—the kitchen (with a small attached
bathroom) to the east and a back bedroom to the west. A single door
connected the kitchen and the bedroom. The door was located in the
4
northeast corner of the bedroom and swung into the bedroom toward the
north wall.
As the police announced their presence and entered the front room
of the apartment in uniform, six persons were in that room. No one was
in the bedroom. Three of those persons—Norvell, Ledbetter, and Derek
Townsend—remained in the front room, sitting at the kitchen table.
Dennis, who had just walked in, eventually got up from the kitchen table
and left the residence. None of those four appeared to be interested in
fleeing or hiding.
In contrast to those four, Henderson and the defendant Thomas
quickly retreated from the front room to the bedroom in back.
Henderson left his blunt behind and went immediately to the southwest
corner of the bedroom—i.e., the opposite end of the bedroom from where
the door was located. Henderson then stayed in that corner of the
bedroom, away from the door and near a dresser. Thomas followed
Henderson into the bedroom, closed the door, and tried to hold it shut.
One of the police officers, Officer Sievert, pushed against the door
to the bedroom. Despite Thomas’s efforts to hold the door shut, after
several seconds, the officer was able to shoulder the door open. The
officer ordered Henderson (still in the southwest corner) and Thomas
(still in the northeast corner) to the ground. Henderson immediately
complied. Thomas, however, remained standing and tried to engage the
officer in discussion. The officer believed this was an effort at
“misdirection.” In any event, the officer had to force Thomas to the
ground. The two men were then moved to the bed in the bedroom as the
officers searched the room.
Behind the door that Thomas had been holding back and along the
north wall near the northeast corner were two rows of neatly placed
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women’s purses belonging to Norvell. On top of the purses, police found
a clear plastic baggie that contained four individually wrapped bags of
marijuana and four individually wrapped bags of crack cocaine. The
marijuana bags were $5 units, and the crack cocaine bags were $50
rocks, all prepackaged for sale.
The officers also found a phone and prescription medication
belonging to Henderson on a dresser near the corner of the room where
Henderson had initially been standing. Henderson explained that he had
previously entered the back bedroom to charge his cell phone and had
left his charging cell phone and a bottle of prescription pills on the
dresser in the southwest corner. When the police came in, he admitted
he had disposed of the blunt and headed back to that southwest area of
the bedroom where the dresser with his cell phone and pills was located.
Thomas had no weapon or other contraband on his person. He did
have $120 cash. The other persons who had been in the apartment had
no money or contraband on their persons. In addition, Norvell denied
any knowledge of the crack cocaine found in his bedroom. Henderson
also denied any knowledge of the drugs found in the bedroom.
The packaging of the marijuana and crack cocaine was crinkled, so
the police did not expect to find any fingerprints on the baggie or the
bags. Although they checked all items for fingerprints, no fingerprints
were subsequently detected.
The officers located a marijuana blunt in front of the microwave
where Henderson had initially been standing when the officers observed
him light the blunt from outside the window. A spoon with cocaine
residue on it and several small, clear plastic bags were also located at the
table where Norvell, Ledbetter, and Townsend were sitting.
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After the police completed a search of the apartment, Thomas and
Henderson were asked for identification. Henderson identified himself
correctly to the officers, but Thomas gave a false name and claimed he
could not remember his Social Security number. Thomas only gave his
actual name when he was moved to the squad car and told he was under
arrest for the evidence found in the bedroom and would be held as a
“John Doe” until he could be identified through fingerprints.
Thomas claimed he had not been forthcoming about his name
because he had an outstanding warrant for his arrest. However, the
police checked, and there was no warrant. One of the officers later
testified that it is “pretty typical” for a suspect to claim that he or she ran
because of a warrant “so you won’t have to acknowledge the presence of
drugs.”
Thomas was charged with possession with intent to deliver
marijuana, possession with intent to deliver crack cocaine, a drug tax
stamp violation, and interference with official acts. See Iowa Code
§ 124.401(1)(c)(3) (2011) (possession of crack cocaine); id. § 124.401(1)(d)
(possession of marijuana); id. § 453B.3 (drug tax stamp violation); id.
§ 719.1(1) (interference with official acts). The drug tax stamp charge
was eventually dropped. Thomas entered a plea of not guilty to the
remaining charges in March 2012, and the case went to trial in July.
At the close of the two-day trial, Thomas moved for a directed
verdict on the possession with intent to deliver charges, arguing there
was insufficient evidence he had possessed the drugs in question. The
district court denied the motion. The jury found Thomas guilty of all
three charges. Thomas was sentenced to a period of imprisonment not to
exceed ten years for the crack cocaine charge, a period not to exceed five
years for the marijuana charge, and thirty days for the interference with
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official acts charge. The court ordered the sentences to run
concurrently. Additionally, Thomas was fined $1750 and ordered to pay
court costs and attorney fees.
Thomas appealed and urged again that there was insufficient
evidence to support the possession with intent to deliver charges. The
court of appeals agreed with Thomas and set aside those convictions.
We granted the State’s application for further review.
II. Standard of Review.
We have recently summarized our standard of review when
reviewing the sufficiency of evidence in criminal cases as follows:
Sufficiency of evidence claims are reviewed for . . . correction
of errors at law. In reviewing challenges to the sufficiency of
evidence supporting a guilty verdict, courts consider all of
the record evidence viewed in the light most favorable to the
State, including all reasonable inferences that may be fairly
drawn from the evidence. [W]e will uphold a verdict if
substantial record evidence supports it. We will consider all
the evidence presented, not just the inculpatory evidence.
Evidence is considered substantial if, when viewed in the
light most favorable to the State, it can convince a rational
jury that the defendant is guilty beyond a reasonable doubt.
Inherent in our standard of review of jury verdicts in
criminal cases is the recognition that the jury [is] free to
reject certain evidence, and credit other evidence.
State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012) (citations omitted)
(internal quotation marks omitted).
III. Analysis.
Iowa Code section 124.401 makes it unlawful for any person “to
manufacture, deliver, or possess with the intent to manufacture or
deliver, a controlled substance.” Iowa Code § 124.401(1). In order for
the State to establish possession of a controlled substance under this
statute, it had to prove Thomas “exercised dominion and control over the
contraband, had knowledge of the contraband’s presence, and had
8
knowledge the material was a narcotic.” State v. Kern, 831 N.W.2d 149,
160 (Iowa 2013) (citation omitted) (internal quotation marks omitted).
The State may show the defendant had either “actual possession”
or “constructive possession.” Id. at 160–61. At times, we have said that
actual possession requires the contraband to be found on the
defendant’s person. See id. at 161; State v. DeWitt, 811 N.W.2d 460, 474
(Iowa 2012). Elsewhere, we have said that an individual has actual
possession when the contraband is found on his or her person or when
substantial evidence supports a finding it was on his or her person “at
one time.” State v. Vance, 790 N.W.2d 775, 784 (Iowa 2010). In other
words, “[a]ctual possession may be shown by direct or circumstantial
evidence.” Id.
Under the Vance formulation, the distinction between actual
possession and constructive possession does not turn on whether a
defendant was apprehended with the contraband, but on whether there
is sufficient evidence that contraband was in his or her physical
possession at some point in time. See id.; see also United States v.
Cantrell, 530 F.3d 684, 693 (8th Cir. 2008) (“A person who knowingly
has direct physical control over a thing, at a given time, is then in actual
possession of it.”); 8th Cir. Crim. Jury Instr. § 8.02 (rev. ed. 2013)
(setting forth the same language). In Vance, the pseudoephedrine in
question was not found on Vance’s person at the time he was stopped,
but there was evidence that a pharmacy had sold pseudoephedrine to an
individual who had produced Vance’s identification card. 790 N.W.2d at
784. In addition, among other things, Vance was the only person in the
vehicle, the vehicle contained recently manufactured methamphetamine,
a receipt for the pseudoephedrine was on the front driver’s side of the
vehicle, and Vance had the same identification card on his person. Id.
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Based on this and other evidence, we found a jury “could reasonably
infer Vance had actual possession of the pseudoephedrine pills.” Id.
In any event, the doctrine of constructive possession allows the
defendant’s possession of contraband to be inferred based on the
location of the contraband and other circumstances. Id. When drugs are
found on premises in the exclusive possession of the accused, that may
be enough to sustain a conviction. See Kern, 831 N.W.2d at 161; DeWitt,
811 N.W.2d at 474 (noting “possession may be inferred if the defendant
is in exclusive possession of the premises in which the contraband was
located”). But where the premises are jointly occupied, additional proof
is needed. See Kern, 831 N.W.2d at 161; DeWitt, 811 N.W.2d at 474–75.
We have identified the nature of the additional proof as follows:
“(1) incriminating statements made by a person;
(2) incriminating actions of the person upon the police’s
discovery of a controlled substance among or near the
person’s personal belongings; (3) the person’s fingerprints on
the packages containing the controlled substance; and
(4) any other circumstances linking the person to the
controlled substance.”
Kern, 831 N.W.2d at 161 (quoting State v. Maxwell, 743 N.W.2d 185, 194
(Iowa 2008)). These factors are not exclusive, however, and merely act as
a guide. See DeWitt, 811 N.W.2d at 475; Maxwell, 743 N.W.2d at 194.
Thomas, of course, did not have exclusive access to the bedroom
where the drugs prepackaged for sale were found. But we believe a
reasonable jury could conclude beyond a reasonable doubt that he had
been in possession of them and dropped them from his person shortly
before the police entered the room. To begin with, the drugs were found
where Thomas had been holding the door back from the police. Also, no
other logical explanation exists for Thomas’s behavior. He had no
weapon and, despite his claim to the contrary, no outstanding warrants.
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To all appearances, what Thomas was doing when he held back the door
was buying time. Holding back the door would not have made sense if
Thomas’s goal had been to get away from the police, but it made perfect
sense if his goal was to get drugs off his person before the police got to
him.
Of course, Norvell and Henderson also had connections to the
bedroom. However, both of them denied any knowledge of the drugs.
Henderson repeated his denial on the stand at trial. Additionally, neither
Norvell nor Henderson offered any resistance or acted inappropriately in
their dealings with the officers. Furthermore, if Norvell were the culprit,
it would have been odd for him to leave drugs for sale sitting in plain
view on top of two rows of purses neatly resting on the floor of his
bedroom. 1 And Henderson had been in the other end of the bedroom
from Thomas and the drugs.
In short, drugs were found in close proximity to the defendant; the
defendant had taken actions explainable most logically as an effort to get
the drugs off his person; and when apprehended, the defendant made
false statements and engaged in misdirection. In addition, there was
evidence tending to exclude the other two individuals who were known to
have been in the bedroom from responsibility for the drugs.
The facts of this case can be compared to our recent drug-
possession cases. In Kern, the defendant lived in a house with her
boyfriend who maintained an extensive marijuana grow operation. 831
N.W.2d at 157, 160, 162. Although the evidence readily permitted an
inference that the defendant knew about the marijuana, “there was no
1As the prosecutor urged during closing argument, “Drug dealers do not leave
drugs laying out . . . .”
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evidence that Kern was more than an agreeable bystander to a vast
operation she permitted to take place.” Id. at 162. The record lacked
evidence pointing to the defendant’s “dominion and control over the
marijuana.” Id. As we pointed out, “Our long-standing rule does not
permit an inference of dominion and control based only on the presence
of drugs in a jointly occupied premises.” Id. Accordingly, we reversed
the defendant’s conviction for possession of marijuana. See id. Unlike in
Kern, several facts here—including the specific location where the drugs
were found and Thomas’s own actions—allow a jury to conclude that
Thomas personally exercised dominion and control over the drugs.
In DeWitt, officers found marijuana in the trunk of a car the
defendant had been driving but did not own. 811 N.W.2d at 466, 474–
75. The uncontested evidence showed five other individuals had access
to the vehicle. Id. at 475. Nonetheless, we found the sum total of the
evidence sufficient to support the defendant’s conviction. Id. at 477.
This evidence included the fact that the defendant was the most recent
driver of the car and drove it frequently, suspicious activity by the
defendant, the defendant’s resistance to law enforcement, and
information provided by a confidential informant as to which no hearsay
objection had been made. Id. at 475–77. A number of the same factors
are present here. The defendant was the person who had been most
recently in the spot where the drugs were found, his conduct prior to his
arrest was highly suspicious and makes sense only if his goal was to get
the drugs off of his person, and he offered resistance.
Maxwell likewise involved drugs found in a vehicle. 743 N.W.2d at
189. In that case, Maxwell had been driving a vehicle that had an empty
pack of cigarettes between the two front seats. Id. The pack turned out
to contain crack cocaine. Id. A full pack of the same brand of cigarettes
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was found on Maxwell’s person. Id. Maxwell, however, did not own the
vehicle. Id. We nonetheless found that Maxwell was not entitled to a
new trial after he was convicted of possession. Id. at 195. We
emphasized that Maxwell was the driver and the only person in the car at
the time of the stop, that the pack containing the drugs was in Maxwell’s
plain view, that the drugs were found immediately next to Maxwell
between the two front seats, and that Maxwell continued to drive for one
hundred feet and then pulled into his driveway and got out of the car
when the officer activated his lights. Id. at 194. Again, some of the same
factors linking the defendant to the drugs are present here. In this case,
the drugs were found in the spot where the defendant had just been, and
his behavior was not merely mildly suspicious (as in Maxwell), but highly
indicative of an effort by the defendant to get the drugs off his person.
In State v. Nitcher, the defendant had been staying at a house for a
few days because he had an argument with his girlfriend. See 720
N.W.2d 547, 551 (Iowa 2006). Nitcher was not the owner of the house,
and several other individuals were also occupying the house. Id. at 550–
51. The house contained a meth lab. Id. at 550–52. In finding sufficient
evidence that Nitcher had constructively possessed methamphetamine,
we emphasized that his clothing contained an ether smell, and his
fingerprint was on a pie plate containing pseudoephedrine. Id. at 559.
The court also noted that the manufacturing process had occurred
recently. Id. As we explained, “This constitutes substantial evidence to
support the jury’s finding as to the possession link between Nitcher and
the methamphetamine when viewed in the context of the other evidence
in the case.” Id. Here, too, despite the fact that the apartment and the
bedroom were not in Thomas’s exclusive possession, there was
substantial evidence linking Thomas personally to the drugs.
13
State v. Carter was another vehicle case. See 696 N.W.2d 31, 34–
35 (Iowa 2005). Carter, the driver of the vehicle, engaged in evasive
driving and made movements with his right hand when police tried to
initiate a traffic stop. Id. at 34. He also gave a false name when police
ultimately stopped the vehicle. Id. at 35. A baggie containing
individually wrapped bags of crack cocaine was found in the center
console of the car, the same area toward which Carter was seen moving
his hand before the stop. Id. Carter had only $6.09 on his person and
no cell phone, pager, or drug notes. Id. The passenger, on the other
hand, had also been riding in the front of the vehicle and was found with
$295.75 on his person. Id.
Carter argued the evidence was insufficient to sustain his
conviction. Id. at 36. He pointed out that “the center console was close
and equally accessible to the driver and the passenger,” he was not the
owner of the vehicle, there were no fingerprints on the drug package, and
he had no drug paraphernalia on his person. Id. at 40. Yet we found the
evidence sufficient to convict Carter based on (1) his suspicious activity
before and after the stop; (2) the proximity of the controlled substances
to where he was rummaging while police were attempting to stop the
vehicle; (3) the presence of the baggie in a location where one would not
ordinarily leave drugs; and (4) the passenger’s denial that the drugs were
his, combined with the passenger’s cooperation with police. Id. We
concluded the fact finder “could reasonably infer that Carter was
exhibiting a proprietary interest in the controlled substances by
desperately trying to hide them while the police were pursuing him.” Id.
at 41.
This case is in many respects a reprise of Carter. As in Carter, the
defendant here did not own and was not in exclusive possession of the
14
place where the drugs were found. However, he was engaged in conduct
that appeared to be an effort to avoid being caught with contraband, he
then gave a false name to police when caught, and the contraband was
found where the defendant had been making his suspicious movements
just before he was apprehended (and it would have been otherwise odd
for contraband to be there). Furthermore, the other person who was in
the same room denied any connection to the contraband and had not
engaged in suspicious activity. Thus, as in Carter, we believe the
evidence is sufficient to sustain the convictions.
In State v. Henderson, we upheld the defendant’s convictions for
drug possession following law enforcement’s entry for eviction purposes
into an apartment she jointly occupied with a roommate. See 696
N.W.2d 5, 8–10 (Iowa 2005). Various drugs and drug-related items were
found. Id. at 8. In our view, the defendant’s vehement reaction to the
entry “implied guilty knowledge,” whereas the roommate’s “obliging
manner” did not. Id. at 9. We acknowledged that “one could also explain
defendant’s response to the situation by the fact that she was the object
of a forcible eviction from her residence,” but we noted that the
roommate had denied the drugs were hers. Id. We believe the evidence
here linking Thomas personally to the drugs, if anything, exceeds the
evidence we remarked upon in Henderson. Cf. State v. Kemp, 688
N.W.2d 785, 787, 790 (Iowa 2004) (finding sufficient evidence to sustain
a potential conviction when marijuana was found in a car that defendant
owned and had been the most recent person to drive, although defendant
was working on the vehicle with two other individuals and another
individual was inside the vehicle as a passenger when police arrived).
By contrast, in State v. Bash, we had a Kern-type situation. See
670 N.W.2d 135 (Iowa 2003). The husband had a box containing
15
marijuana on his nightstand on his side of the bed. Id. at 136. The wife
testified she did not know what was in the box but admitted she knew
the box had contained marijuana in the past. Id. at 136–37. In finding
the evidence insufficient to sustain the wife’s conviction for possession,
we noted the absence of evidence that she had any right to control the
box or the marijuana in it. Id. at 138–39. In short, like Kern and unlike
here, the evidence indicated at most that the defendant knew of the
contraband, not that she had ever exercised control over it. See id.
In State v. Cashen, we also reversed a possession conviction for
insufficient evidence. See 666 N.W.2d 566, 568 (Iowa 2003). In that
case, a car with six people was stopped by law enforcement. Id. Four
passengers were sitting in back, including the defendant Cashen who
had his girlfriend on his lap. Id. A baggie of marijuana was found
wedged into the rear seat on the side where the defendant and his
girlfriend had been seated. Id. The girlfriend admitted the marijuana
was hers. Id. The defendant had a lighter and rolling papers on his
person; the girlfriend had rolling papers and a small baggie of marijuana
seeds in her pocket. Id. The defendant was not the owner of the car, nor
did he behave suspiciously when the car was stopped. Id. at 572. In
determining that the evidence was insufficient to allow a jury finding of
Cashen’s guilt, we emphasized that on the question of dominion and
control the State had only Cashen’s proximity to the drugs, and “[t]he
other three passengers riding in the back seat were just as close to the
drugs as was Cashen.” Id.
This case stands in contrast to Cashen. As we have already
discussed, the defendant here was the last person present in the actual
location where the drugs were found, the evidence supports an inference
16
that the defendant dropped them there, the defendant’s conduct was
highly suspicious, and others denied responsibility for the drugs.
Finally, State v. Webb involved another Kern scenario. See 648
N.W.2d 72, 79–81 (Iowa 2002). Three adults shared an apartment. Id.
at 75. Marijuana was found in the kitchen and the living room. Id.
Webb was not in the apartment when the police arrived, nor did he
engage in suspicious conduct, nor were any of the relevant items found
near or among his belongings, nor was there any evidence as to when he
had last been in the apartment. Id. at 79–80. Webb did have $336 on
his person when he subsequently arrived at the apartment, but he said
he had received the money from his roommate. Id. at 80. In sum, we
assumed there was sufficient evidence that Webb knew about the
marijuana but found insufficient evidence that he had the ability to
maintain control over it. See id. at 81. This case, on the other hand,
puts the defendant most recently in the location where the marijuana
had been found, with considerable circumstantial evidence that he had
dropped it there.
“Direct and circumstantial evidence are equally probative.” Iowa R.
App. P. 6.904(3)(p); State v. Schrier, 300 N.W.2d 305, 308 (Iowa 1981).
This rule applies to possession cases. See State v. Welch, 507 N.W.2d
580, 583 (Iowa 1993). Considering the totality of the evidence in this
case, it is sufficient to raise a “fair inference of guilt” and generates “more
than suspicion, speculation, or conjecture.” DeWitt, 811 N.W.2d at 475.
As the foregoing review of our recent drug possession caselaw indicates,
the present case fits comfortably among our precedents where we have
found the evidence sufficient to sustain a finding of guilt.
Thomas, who is African-American, also urges that his
constitutional rights were violated when the State struck the only
17
minority from a panel of three potential alternates in his case. See
Batson, 476 U.S. at 96–98, 106 S. Ct. at 1723–24, 90 L. Ed. 2d at 87–89.
Jury selection was not reported. However, the State told the district
court that it had exercised its peremptory challenge on this particular
juror because when asked about police officers’ credibility, “he was very
emphatic in shaking his head and told me that he didn’t believe their
credibility.” The court overruled Thomas’s Batson challenge for the
following reasons:
The Court acknowledges that [this potential alternate
juror] did emphatically shake his head and said he had a
problem with officer credibility. The Court wrote that down
in its notes and circled that as an issue. The Court does
think that’s a race-neutral reason for the strike, and the
Court will allow the strike.
In any event, the alternate juror who was actually chosen was never
seated as a regular juror in the case.
Giving deference to the trial court’s finding, we conclude there was
no Batson error because the State had a race-neutral reason for striking
this potential alternate juror. See State v. Griffin, 564 N.W.2d 370, 375–
76 (Iowa 1997) (rejecting a Batson challenge and noting that a reviewing
court ordinarily should give “great deference” to the trial court’s findings
in this area). We do not reach the State’s alternative argument that if a
Batson error occurred, it was harmless because the alternate juror was
never seated as a regular juror and did not participate in deliberations. 2
2We also do not reach any of Thomas’s claims of ineffective assistance of
counsel. Thomas may bring those claims in a postconviction relief proceeding. See
State v. Clay, 824 N.W.2d 488, 502 (Iowa 2012) (noting the defendant may bring
ineffective-assistance-of-counsel claims in a postconviction relief action).
18
IV. Conclusion.
For the foregoing reasons, we affirm the district court’s judgment
and sentence and vacate the decision of the court of appeals.
DECISION OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT AND SENTENCE AFFIRMED.
All justices concur except Hecht, Wiggins, and Appel, JJ., who
dissent.
19
#12–1491, State v. Thomas
HECHT, Justice (dissenting).
Police officers standing outside Raymond Norvell’s residence
observed Isaiah Henderson inside smoking marijuana. After knocking on
the door, announcing their presence and entering the residence, the
officers found several persons, drug paraphernalia near several of the
persons, and marijuana and crack cocaine. Tremayne Thomas, one of
the persons found inside the residence, who was neither a resident at the
apartment nor the person whom the officers had observed moments
earlier through the window smoking marijuana there, was convicted of
possession of the marijuana and crack cocaine with intent to deliver the
drugs. In an opinion faithfully applying this court’s decisions on the
doctrine of constructive possession, the court of appeals concluded the
State failed to produce sufficient evidence supporting Thomas’s
conviction. As I believe the court of appeals got it right, I respectfully
dissent.
I begin with a brief overview of the applicable law. Iowa Code
section 124.401 makes it unlawful “to manufacture, deliver, or possess
with the intent to manufacture or deliver, a controlled substance.” Iowa
Code § 124.401(1) (2011). We have explained that to establish
possession of a controlled substance for purposes of this provision, the
State must prove an accused has exercised dominion and control over
the substance, had knowledge of its presence, and had knowledge of the
identity of the substance. State v. Maxwell, 743 N.W.2d 185, 193 (Iowa
2008). In explicating the meaning of these requirements, we have
frequently maintained proof of access to a place where a substance is
found cannot by itself support a finding of unlawful possession. See
State v. Cashen, 666 N.W.2d 566, 572 (Iowa 2003) (“Simply because a
20
person can reach out and grasp something does not mean he or she has
control or dominion over the object.”); see also Maxwell, 743 N.W.2d at
194; State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003); State v. Webb, 648
N.W.2d 72, 77 (Iowa 2002) (quoting State v. Reeves, 209 N.W.2d 18, 22
(Iowa 1973)).
Instead, we have often noted the State may employ either of two
formulations of proof in its attempt to establish possession. When a
substance is found on an accused’s person, we have described the
concept as “actual possession,” and noted the State may present direct
evidence of actual possession in making its case. Alternatively, we have
also explained the State need not establish possession by direct evidence
of actual possession, and instead, the State may present its case based
on a theory of “constructive possession.” 3 The doctrine of constructive
possession has been characterized as “a legal fiction used by courts to
find possession in situations where it does not in fact exist, but where
they nevertheless want an individual to acquire the legal status of
possessor.” Charles H. Whitebread & Ronald Stevens, Constructive
Possession in Narcotics Cases: To Have and Have Not, 58 Va. L. Rev. 751,
761–62 (1972) [hereinafter Whitebread & Stevens].
The concept of constructive possession is used to modestly extend
the concept of actual possession and include under its umbrella those
cases where the inference of possession at some time in the past is
3I note the State advanced its case at trial only in terms of “constructive
possession,” because, as the prosecutor explained there, where individuals “have the
ability to try and flee and throw that substance . . . so that it cannot be taken directly
off their person . . . this fact pattern is the norm and in most instances the officers deal
with constructive possession.” On appeal, the State contends more generally the jury
was free to find the real reason for Thomas’s elusive behavior was his actual possession
of the drugs on his person when the police arrived and when he entered the bedroom.
21
exceptionally strong. See State v. Barber, 92 P.3d 633, 638 (N.M. 2004);
see also Reeves, 209 N.W.2d at 22 (expounding constructive possession
principles and explaining “if the accused does not have exclusive control
of the hiding place possession may be imputed if he has not abandoned
the narcotic and no other person has obtained possession”); 1 Wayne R.
LaFave, Substantive Criminal Law § 6.1(e), at 433 (2d ed. 2003)
(“Constructive possession . . . is simply a doctrine used to broaden the
application of possession-type crimes to situations in which actual
physical control cannot be directly proved . . . .”). A showing of
constructive possession, we have said, requires the State to establish an
accused has knowledge of the presence of the substance and has the
authority or right to maintain control of the substance. See Maxwell,
743 N.W.2d at 193. In some cases, as where an accused exclusively
possesses the premises where a substance is discovered, an accused’s
authority or right to maintain control might be inferred. Reeves, 209
N.W.2d at 23. Even when the inference is established in those cases,
however, we have cautioned the inference is rebuttable and not
conclusive. Id.
We have cautioned even more strongly against the inference of
possession when an accused has not been in exclusive possession of the
premises, and we have mandated the accused’s knowledge of and ability
to control a substance must be established by proof beyond presence on
the premises or mere physical proximity to contraband found there. See
id.; see also State v. Kern, 831 N.W.2d 149, 161 (Iowa 2013). In these
“joint” possession or occupancy cases, we have explained the State must
typically present proof of immediate and exclusive possession of the place
where drugs are found on a premises, and additional proof such that we
can be satisfied the accused has possessed the substance for purposes of
22
the statute. Reeves, 209 N.W.2d at 23. That additional proof may take
the form of proof of incriminating statements made by the accused,
incriminating actions upon the police’s discovery of the substance among
the accused’s belongings, fingerprints on the packaging containing the
substance, and any other circumstances establishing a possessory link
between the accused and the substance. Maxwell, 743 N.W.2d at 194.
Regardless whether the actual possession or constructive possession
formulation is advanced by the State, however, our purpose in setting
forth these formulations and evidentiary factors for consideration has
always been to ensure the State can establish, by something more than
speculation, that the accused has actually exercised possession of the
substance recovered beyond a reasonable doubt. 4 See Reeves, 209
4I note the articulation of possession principles in our recent decision in State v.
Vance, 790 N.W.2d 775, 784–85 (2010), is consistent with the principle I describe here,
and consistent with the purposes underlying the standards for proving possession we
have set forth in our prior decisions addressing these standards. In Vance, we
explained “actual possession” may be shown by direct or circumstantial evidence, and
concluded the defendant’s actual possession of a pharmacy receipt for pseudoephedrine
and additional circumstantial evidence were sufficient to support a finding that at one
time the defendant had actually exercised possession of the pseudoephedrine. See
Vance, 790 N.W.2d at 784. Vance departed from the very clear trend in our caselaw
and the decisions of other courts in applying the label of “actual possession” to a case
where the State presented evidence an accused may have exercised possession of a
substance at some point in the past. See, e.g., State v. Carter, 696 N.W.2d 31, 39–40
(Iowa 2005) (engaging in constructive possession analysis in case where substance was
found in the same place where driver had been moving his hand prior to stop, because
substance “was not found on his person”); Cashen, 666 N.W.2d at 568–69 (noting,
where marijuana was found wedged in car seat where accused had been sitting, “the
possession to be found, if any, must be constructive” because “the officers did not find
the marijuana on [defendant’s] person”); see also People v. Gallagher, 55 P.2d 889, 890
(Cal. Dist. Ct. App. 1936) (articulating constructive possession doctrine and applying it
where defendant directed officers to his lodging house and explained morphine could be
found in his mattress); Kern, 831 N.W.2d at 161 (“Because no marijuana was found on
Kern’s person, she was not in actual possession of the marijuana.”); State v. DeWitt, 811
N.W.2d 460, 474 (Iowa 2012); Whitebread & Stevens, 58 Va. L. Rev. at 755 (explaining
doctrine of constructive possession originated to address those cases where actual
possession at the time of arrest cannot be shown, but where the inference the
defendant had possession at one time is very strong). Our examination of the evidence
in Vance, however, and our resulting conclusion the State’s evidence was sufficient to
23
N.W.2d at 21 (explaining unlawful possession must be established by
proof “the accused exercised dominion and control (i.e., possession) over
the contraband”).
When reviewing findings of guilt in possession cases, we will
uphold the findings when substantial evidence supports the verdict
beyond a reasonable doubt. See Kern, 831 N.W.2d at 158. We review
the evidence presented at trial in the light most favorable to the State,
but we consider all the evidence in the record and not just the evidence
favoring the State. Id. We have often observed direct or circumstantial
evidence of possession may constitute substantial evidence for purposes
of our review. See, e.g., Reeves, 209 N.W.2d at 21. We have also
routinely said circumstantial evidence may often be equally as or even
more persuasive than direct evidence in any given case. See, e.g., State
v. Hearn, 797 N.W.2d 577, 580–81 & n.1 (Iowa 2011) (noting aiding and
abetting must be proven by same evidentiary standard regardless
___________________________________
establish the accused had at one time exercised possession of the substance functioned
to satisfy the same standard we have always set forth for determining whether the State
has established the statutory possession requirement. In other words, in Vance, as in
every possession case, we were confronted with and answered the question of whether
the State had presented sufficient evidence to establish, beyond a reasonable doubt,
that an accused had actually exercised possession of the substance in question. See
Vance, 790 N.W.2d at 784 (concluding evidence could establish accused possessed
pseudoephedrine based on evidence he purchased the pills from CVS, evidence of his
exclusive occupancy of vehicle in which pseudoephedrine, coffee grinder, and recently
manufactured methamphetamine were found, his incriminating statements, and the
paraphernalia found in his pockets); cf. Michael S. Deal, United States v. Walker:
Constructive Possession of Controlled Substances: Pushing the Limits of Exclusive
Control, 2 J. Pharmacy & L. 401, 405 n.43 (1994) (explaining, for purposes of
establishing possession, “[t]here must either be a requirement that exclusive control
over the area where the contraband is found must exist, or substantial evidence that
defendant possessed the drug on his person at some time in the past must exist” (citing
Whitebread & Stevens, 58 Va. L. Rev. at 766–74)). Undeterred by our longstanding
evidentiary threshold in drug possession cases, the majority, without significant
discussion on this point, dismisses out of hand every other applicable case in our
history of possession jurisprudence and applies the “Vance formulation” in a manner
lowering the bar for conviction.
24
whether evidence is direct or circumstantial and finding substantial
evidence of defendant’s active participation in crime); State v. Bentley,
757 N.W.2d 257, 262–63 (Iowa 2008) (explaining, in kidnapping case,
State need not “affirmatively disprove” any hypothesis someone other
than accused removed victim where evidence indicated accused was only
occupant of house other than victim’s sleeping grandmother and younger
siblings); State v. Radeke, 444 N.W.2d 476, 479 (Iowa 1989) (noting
direct evidence and circumstantial evidence may be equally probative
and concluding evidence of defendant’s use of threats and force to induce
victim to unbutton her blouse was sufficient to allow jury to find
defendant had intent to commit sexual assault beyond a reasonable
doubt).
We have also explained, however, that in possession cases where
the State fails to present evidence an accused possessed the proscribed
items at the time of arrest, and instead aims to prove possession at some
time prior, the evidence of past possession “ ‘must be entirely consistent
with defendant’s guilt, wholly inconsistent with any rational hypothesis
of his innocence, and so convincing as to exclude any reasonable doubt
that defendant was guilty of the offense charged.’ ” Reeves, 209 N.W.2d
at 21 (quoting State v. Schurman, 205 N.W.2d 732, 734 (Iowa 1973)); see
also State v. McDowell, 622 N.W.2d 305, 308 (Iowa 2001) (overturning
conviction in case where State presented evidence of defendant’s frequent
dominion and control of portions of another’s bedroom where gun was
found, but failed to present any evidence specifically linking defendant to
the gun); Whitebread & Stevens, 58 Va. L. Rev. at 763 (explaining even
evidence of “exclusive dominion and control” cannot justify a finding of
possession in the absence of “evidence establishing the fact that no one
else could have exercised control over the drugs”); cf. Webb, 648 N.W.2d
25
at 81 (explaining evidence must have a “ ‘visible, plain, or necessary
connection’ ” with possession (quoting Black’s Law Dictionary 1295 (6th
ed. 1990))); State v. Atkinson, 620 N.W.2d 1, 5–6 (Iowa 2000) (examining
case involving “impermissible pyramiding of inferences” and overturning
conviction despite evidence of evasive movement and proximity to and
knowledge of substances, because any inference about defendant’s
exercise of control would have been “based on pure speculation” (quoting
State v. Snyder, 635 So. 2d 1057, 1058 (Fla. Dist. Ct. App. 1994) (first
quote))).
This demanding standard for proof of possession must be met, we
have explained, because we must ensure the evidence—whether direct or
circumstantial and whether characterized as actual or constructive—
generates something more than an inference of suspicion and instead
raises a real inference of guilt beyond a reasonable doubt. See Reeves,
209 N.W.2d at 21; see also State v. Vance, 790 N.W.2d 775, 783 (Iowa
2010) (noting evidence is substantial only if it would convince rational
trier of fact of guilt beyond a reasonable doubt); cf. United States v.
Hernandez, 301 F.3d 886, 893 (8th Cir. 2002) (“[T]here is a critical line
between suspicion of guilt and guilt beyond a reasonable doubt.”); Parker
v. Renico, 450 F. Supp. 2d 727, 735 (E.D. Mich. 2006) (“Here, while the
evidence may have lead to a ‘reasonable speculation’ that the [accused]
was in possession . . ., without stacking inferences there is insufficient
evidence to prove [possession] beyond a reasonable doubt . . . .”).
This court’s decisions applying the court-created doctrine of
constructive possession reveal a cautious, but very sound,
jurisprudential approach. When the defendant in a drug case is not
found to have actual possession of contraband, we have held a conviction
cannot stand in the absence of proof beyond a reasonable doubt the
26
defendant—rather than someone else who is present with the
defendant—actually possessed the contraband at some prior time. Thus,
when a residence or vehicle containing an illegal substance is occupied
by more than one person, we have required more than inference piled
upon inference amounting ultimately to mere speculation supporting a
finding that the defendant, rather than someone else present at the time,
exercised dominion and control over the illegal substance. In my view,
the majority’s conclusion the evidence was sufficient to support a finding
Thomas—rather than others present in Norvell’s apartment—possessed
the marijuana and cocaine found there sometime before the officers
arrived relies not on legitimate inference countenanced by our prior
caselaw, but instead on multiple inferences amounting to speculation.
Approaching the matter in chronological order, I begin with what
the officers knew about possession of illegal drugs in this case before
they entered Norvell’s apartment. One of the officers heard a female
voice—apparently that of Ledbetter, the only female in the apartment—
scolding another occupant for interacting with the police too cavalierly
and thereby risking arrest when the officers had stopped at the front
door minutes earlier. One could at least speculate that Ledbetter was
concerned about the prospect of being arrested because she knew illegal
drugs were present in Norvell’s apartment. While peering through the
window, the officers had watched Henderson—not Thomas—smoking
marijuana while standing near the microwave in the kitchen of the
apartment.
When the officers entered the apartment, they first encountered
Ledbetter, Norvell, and Derek Townsend, who were seated at the kitchen
table. On that table were a spoon with cocaine residue on it and several
small, empty, clear plastic bags. Thus, before the officers entered the
27
bedroom and arrested Thomas, they saw Henderson smoking marijuana
and passed by Norvell—the only resident of the apartment—and two
other persons seated around a table in close proximity to evidence that
cocaine, and perhaps other drugs, had been used there recently.
There was no direct evidence linking Thomas to the marijuana and
cocaine found in Norvell’s bedroom atop one of Norvell’s purses located
there on the floor. No fingerprints were found on the sandwich bag, or
the individual plastic bags within it, and no other drug paraphernalia
was found in the room. There was no testimony from any witness who
claimed to have seen Thomas throw or place the small, clear plastic bags
in the location where they were found. The majority nonetheless finds
inferences from circumstantial evidence sufficient to support the
conviction. I will explore each of the circumstances in turn.
As the officers entered the apartment, Henderson and Thomas
moved from the front room—a combined living and kitchen area in view
of the front door—into Norvell’s bedroom. The evidence is undisputed
Henderson entered the bedroom first, followed by Thomas. The majority
concludes a reasonable juror could infer that Thomas had the marijuana
and cocaine on his person when the officers entered the apartment, and
he went into the bedroom to get rid of them. I believe the majority’s
inference on this point is based on sheer speculation under the
circumstances presented here. Henderson, the only person the officers
had seen actually using marijuana, entered the bedroom before
Thomas. 5 He testified he had never seen Thomas holding the drugs. The
5In the subsequent search of the apartment, the officers located a phone and
prescription medication belonging to Henderson on a dresser in the bedroom. The
record further suggests Henderson had placed those items there at some time before
the officers arrived. Thus one could at least speculate that Henderson—whom the
officers had seen smoking marijuana—placed the marijuana and cocaine on Norvell’s
28
other three occupants, who had been found within arm’s reach of small
plastic bags like those found in the bedroom, likewise gave no indication
they had ever seen Thomas holding or accessing the drugs. On these
facts, I conclude Henderson’s possession was equally consistent with the
State’s theory the drugs eventually discovered had been recently
discarded. 6 See Cashen, 666 N.W.2d at 572–73 (overturning conviction
in part because “[t]he other three passengers riding in the back seat were
just as close to the drugs as was Cashen”); Webb, 648 N.W.2d at 79
(“None of these items were found in a place that was immediately and
exclusively accessible to Webb and subject to his dominion and
control.”).
Moreover, as I have noted, Norvell, the only resident of the
apartment, and two other persons were seated at the table where the
spoon containing cocaine residue and small plastic bags were located.
No one saw either Henderson or Thomas drop or throw the marijuana
and cocaine on Norvell’s purse as the two entered the bedroom.
Accordingly, I conclude Thomas’s movement into the bedroom behind
Henderson upon the officers’ entry raises no credible inference stronger
than speculation that Thomas more likely than any other person present
exercised dominion and control over the drugs at some prior time.
The majority also suggests it is significant no other person in
Norvell’s apartment claimed knowledge or ownership of the marijuana
___________________________________
purse when he was in the bedroom earlier depositing his phone and medication on the
dresser. One could further speculate that the marijuana the officers had seen
Henderson smoking just minutes earlier had been just part of his stash, while the
remainder of it was located in Norvell’s bedroom.
6I also note the officers testified that when questioned shortly after the discovery
of the drugs, Henderson indicated he knew nothing about their origin and gave no
indication he had seen Thomas discard them.
29
and cocaine found in Norvell’s bedroom. If I found this circumstance
supportive of an inference of Thomas’s guilt, perhaps I might also
consider significant the fact that Henderson explicitly testified he had no
reason to believe Thomas had controlled the drugs. No comparable
testimony was advanced regarding the other occupants and their
connection to the contraband. I do not, however, find any part of this
evidentiary picture in which no other occupant claimed knowledge or
ownership surprising or significant, and I do not find it supportive of an
inference even remotely approaching reliability tending to prove
Thomas—more likely than any other person present—exercised dominion
and control over the contraband.
Nor do I share the majority’s willingness to countenance an
inference that Thomas must have hurriedly deposited the drugs on
Norvell’s purse upon entering the bedroom because drug dealers do not
normally leave their drugs in plain view. The suggested inference is truly
extraordinary in my experience, as the reported cases in which law
enforcement officers enter a residence and find drugs and paraphernalia
strewn about are legion. See, e.g., Mona Lynch, Crack Pipes and Policing:
A Case Study of Institutional Racism and Remedial Action in Cleveland, 33
Law & Pol’y 179, 195 (2011) (“[M]any such cases come in when police
enter a residence or hotel room and find the crack pipes, almost always
in plain view.” (Citation and internal quotation marks omitted.)); see also
I. Bennett Capers, Crime, Legitimacy, and Testilying, 83 Ind. L.J. 835,
869 (2008) (“To justify unlawfully entering an apartment where officers
believe narcotics or cash can be found, they pretend to have information
from an unidentified civilian informant or claim they saw the drugs in
plain view after responding to the premises on a radio run.” (quoting
Comm’n to Investigate Allegations of Police Corruption and the Anti-
30
Corruption Procedures of the Police Dep’t, City of New York, Commission
Report 36 (1994))); Samuel R. Gross & Katherine Y. Barnes, Road Work:
Racial Profiling and Drug Interdiction on the Highway, 101 Mich. L. Rev.
651, 673 (2002) (“Typical bases for probable cause to search on I-95
include: drugs in plain view; the odor of burnt marijuana; and
occasionally a ‘K-9 alert’ by a police dog trained to detect illegal drugs.”).
In my view, only the speculation with the most doubtful support links
the drugs’ presence in plain view to Thomas with any more force than to
any other occupant of Norvell’s apartment. A more likely inference is the
drugs remained in plain view because the three people seated at the
kitchen table and Henderson were in the process of using them shortly
before the officers arrived, and there was no perceived reason compatible
with the intended near-term use to conceal them.
After completing the search, the officer asked Thomas and
Henderson for identification. Henderson complied, but Thomas initially
gave a false name and birthdate and indicated he could not remember
his Social Security number. When a records check for the name came
up blank, the officers confronted Thomas, who identified himself and
explained he had behaved as he did because he believed there was an
outstanding out-of-state warrant for his arrest. Henderson testified
Thomas had expressed the same concern as the officers were entering
the apartment and they had moved to the bedroom. The officers later
determined Thomas had been mistaken and there was no outstanding
warrant. 7
7The officers’ testimony revealed two propositions about the potential
significance of Thomas’s explanation of his behavior as a result of his mistaken belief in
an outstanding arrest warrant: (1) individuals will often give fake names or engage in
misdirection, as Thomas did here, because they have outstanding warrants, and (2)
31
The majority also asserts a cognizable inference connecting
Thomas to the contraband arises from the fact that he closed the
bedroom door, sought to hold it shut against the officers’ attempt to
enter, and did not accurately identify himself when asked to do so. We
have previously noted evidence of suspicious behavior or furtive
movements by an accused may be an important factor in our
determination of whether the State has presented substantial evidence of
possession. See Cashen, 666 N.W.2d at 572 (noting lack of suspicious
behavior); Atkinson, 620 N.W.2d at 5–6 (considering evidence of alleged
furtive movements of a passenger in a motor vehicle). The State suggests
Thomas’s flight to the bedroom upon the officers’ entering the apartment,
his resistance at the bedroom door, and his relaying of a false name each
support an inference of guilt.
We have long explained that for purposes of our analysis, we
typically consider as a single circumstance “the fact of an accused’s
flight, . . . resistance to arrest, . . . [and] assumption of a false name,” in
determining what inferences are to be drawn from this kind of conduct.
State v. Wimbush, 260 Iowa 1262, 1268, 150 N.W.2d 653, 656 (1967)
(quoting 2 Wigmore on Evidence § 276, at 111 (3d ed. 1940)). Moreover,
we have often emphasized the caution with which we must consider
“suspicious” behavior or evidence of flight. See, e.g., State v. Bone, 429
N.W.2d 123, 126–27 (Iowa 1988) (noting any marshaling instruction on
flight evidence “should include the caveat that there may be reasons for
the flight (or concealment) which are fully consistent with innocence”); cf.
Kentucky v. King, 563 U.S. __, __, 131 S. Ct. 1849, 1862, 179 L. Ed. 2d
___________________________________
individuals sometimes express fabricated beliefs in outstanding warrants as efforts to
misdirect officers’ attention from the trouble at hand.
32
865, 881 (2011) (“[E]ven if an occupant chooses to open the door and
speak with the officers, the occupant need not allow the officers to enter
the premises and may refuse to answer any questions at any time.”);
Florida v. Royer, 460 U.S. 491, 498, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d
229, 236 (1983) (explaining a police officer is free to approach a suspect
without grounds for a stop, but the suspect’s choice to walk away and
not listen to the officer “does not, without more, furnish those grounds”).
We have expressed this caution in part because the value of
evidence of resistance or flight depends entirely on the degree of
confidence with which we can draw a chain of very specific, and often
improperly speculative, inferences from the evidence. See, e.g., United
States v. Hankins, 931 F.2d 1256, 1261 (8th Cir. 1991). That chain
would have us conclude an accused’s behavior actually constitutes flight
or resistance, conclude the flight or resistance clearly indicates the
accused’s consciousness of some kind of guilt, conclude the
consciousness of some kind of guilt clearly indicates the accused’s
consciousness of guilt of the crime eventually charged, and conclude
consciousness of guilt with respect to the crime eventually charged
clearly indicates the accused’s actual guilt of that crime. See id.; see also
Bone, 429 N.W.2d at 125 (explaining “departure from the area where a
crime has allegedly taken place is of marginal probative value” and
noting other unexplained circumstances must be taken in conjunction
with the departure to reasonably justify an inference of guilt); cf. Webb,
648 N.W.2d at 81 (“When the fact or facts proposed to be established as
a foundation from which indirect evidence may be drawn, by way of
inference, have not a visible, plain, or necessary connection with the
proposition eventually to be proved, such evidence is rejected for
‘remoteness.’ ” (quoting Black’s Law Dictionary 1295 (6th ed. 1990))).
33
As a result of this very tenuous nature of flight and resistance
evidence, we have often noted its presence in prosecutions for possession
of illegal drugs, but we have remained reluctant to find a real inference
from such evidence that the accused actually exercised possession of the
illegal substance eventually found. See, e.g., Atkinson, 620 N.W.2d at 5–
6. Instead, where an accused raises some plausible explanation for
behavior the State invites us to find suspicious and suggestive of guilt of
the crime charged, we have generally rejected the State’s proposed
inference as too speculative in the absence of something more. See, e.g.,
id. (noting, where accused explained her “furtive” hand movements as
the result of an attempt to move her nearby purse, any “conclusion that
the defendant exercised control over [the contraband] by attempting to
hide it would be based on pure speculation”).
Here, I cannot find the evidence of Thomas’s resistance substantial
evidence of his possession of the cocaine and marijuana found in
Norvell’s bedroom on Norvell’s purse. This conclusion is based in part on
both Henderson’s explanation and Thomas’s own explanation for his
behavior—namely, his mistaken but nonetheless real fear of the
outstanding warrant for his arrest. Those explanations alone weaken my
confidence in the chain of inferences the State urges from the resistance
evidence, as they cast substantial doubt on the notion Thomas’s behavior
was attributable to consciousness of guilt for possessing the drugs under
the circumstances presented here.
The majority also places great emphasis on the fact the marijuana
and cocaine were found by the officers near where Thomas stood while
34
resisting the officers’ entrance into the room. 8 But, as I have already
noted, this court’s decisions have consistently held mere proximity to
contraband in a jointly occupied structure or vehicle will not suffice to
support a conviction based on constructive possession. The compelling
need to apply this principle here seems obvious because the bedroom
was Norvell’s, the purse on which the drugs were found was Norvell’s, the
officers had seen Henderson smoking marijuana just moments before he
entered the bedroom, and all the other occupants of the apartment were
seated around a table where the cocaine residue-laden spoon and empty
plastic bags were found.
Our caselaw confronting similar scenarios affirmatively counsels
against a conviction here, given the discovery of the paraphernalia near
the other three occupants, and the discovery of the drugs among
Norvell’s belongings, in Norvell’s bedroom. See Webb, 648 N.W.2d at 79,
81 (overturning possession conviction and noting none of the prohibited
“items [were] found near or among Webb’s personal belongings”);
McDowell, 622 N.W.2d at 308 (“There is no evidence that defendant had
ever accessed the purse belonging to Scott in which the firearm was
contained.”). The inference to be drawn from the totality of this evidence
points away from Thomas, suggesting it was more likely the marijuana
and cocaine belonged to someone else present in the apartment, and
accordingly, suggesting it was more likely some other occupant
possessed it for purposes of our analysis.
The cases cited by the majority, by contrast, examine starkly
different scenarios, where the evidence supporting guilt has been far less
8Henderson’s testimony indicated Thomas was not by the wall behind the door
when the officers actually entered the bedroom, but instead had retreated away from
the door toward the bed as the officer forced the door open.
35
speculative than the evidence we consider here. In DeWitt, for example,
officers corroborated information from a confidential informant who had
previously specifically identified DeWitt, his intent to sell the drugs
eventually discovered, and the vehicle in which he would be traveling
with the drugs. State v. DeWitt, 811 N.W.2d 460, 465 (Iowa 2012).
Although other individuals had “occasional[]” access to the vehicle where
the drugs were found, DeWitt was the sole occupant at the time of
discovery, and we noted DeWitt “was the most recent driver” and “a
frequent driver of the car: he drove it six days a week for work.” Id. at
475–76. Notably, for purposes of our analysis here, the scenario in
DeWitt involved no other individual who might have been suspected of
controlling the drugs. On those facts, the Dewitt scenario presented far
less risk of inappropriate speculation than the facts we consider here.
The circumstances in State v. Carter, 696 N.W.2d 31 (Iowa 2005),
are likewise distinguishable. There, officers, in attempting to stop a
vehicle for a license plate infraction, observed the vehicle “cross[] three
lanes of traffic, [strike] the curb, and just miss[] a light pole.” Carter, 696
at 34. While that was happening, officers observed the driver “making
movements with his right hand all the way down to the floorboard,
causing his head to go down so he could not see the road.” Id. On
further investigation, the officer discovered drugs “in the same area
toward which the driver of the Blazer was moving his hand just prior to
the stop.” Id. at 35. On those facts, we concluded, “the district court
could reasonably infer that Carter was exhibiting a proprietary interest in
the controlled substances by desperately trying to hide them while the
police were pursuing him, resulting in his losing control of the Blazer.”
Id. at 41. And, we added, “Carter’s furtive movements in contrast to the
passenger’s lack of such movements would further support such an
36
inference.” Id. Here, we had no evidence of Thomas’s movement toward
the purses, we had evidence affirmatively delinking Thomas from the
drugs in the form of Henderson’s testimony, and we had evidence of
flight from both Henderson and Thomas. Carter therefore bears little, if
any, resemblance to our facts for purposes of concerns about
speculativeness, despite the majority’s strained attempt to conclude
otherwise. 9
The majority also notes Thomas had $120 cash on his person,
while the others present in Norvell’s apartment had none. We have
previously acknowledged in our caselaw that some substantial sum of
money found on an accused in conjunction with discovery of drug
paraphernalia in the accused’s residence may, in certain instances,
support a finding of possession. See State v. Randle, 555 N.W.2d 666,
668, 672 (Iowa 1996) (examining a scenario where police found $395 on
an accused). We have also explained, however, that even where an illegal
substance is found in an accused’s residence, in the absence of more
substantial evidence like fingerprints on the recovered substance,
immediate and exclusive access to the substance, or discovery among the
personal belongings of the accused, evidence of discovery of a similar
sum of money on an accused is “too tenuous and speculative to support
an inference of constructive possession.” Webb, 648 N.W.2d at 80
9The majority labors even more strenuously in attempting to rely on Maxwell
and Nitcher. In Nitcher, we had evidence of the defendant’s occupancy of the premises
where drugs were discovered, his fingerprint on paraphernalia involved in the drug
manufacturing process and laden with precursor residue, the scent of precursor
emanating from his clothing, and additional paraphernalia used in the manufacturing
process located in close proximity to his clothing in his bedroom. See State v. Nitcher,
720 N.W.2d 547, 558 (Iowa 2006). In Maxwell, we had evidence the defendant was the
sole recent occupant of the vehicle in which the drugs were found, the drugs were found
in a box of cigarettes wedged between the front seats in reach of the defendant as he
was driving, and the defendant was found with a box of the same brand of cigarettes on
his person, in addition to the evidence of his furtive behavior. Maxwell, 743 N.W.2d at
194. Neither case raises anything like the spectre of speculation we confront here.
37
(examining scenario where accused was found with $336 on his person).
Regardless the nature of the circumstances, however, I conclude $120
falls far short of the threshold value on which a reasonable fact finder
may rely as circumstantial evidence tending to prove possession of
drugs. Common sense dictates this amount fails to reliably indicate
dealing in controlled substances. See, e.g., State v. Brown, 313 S.E.2d
585, 589 (N.C. 1984) (noting “over $1,700 in cash” was a figure worth
considering in its possession analysis).
More importantly, in both Webb and Randle, we noted the
importance of the discoveries of contraband in the residences of the
accused—a circumstance conspicuously absent here. See Webb, 648
N.W.2d at 81; Randle, 555 N.W.2d at 672. The value of the money
recovered from Thomas was equally consistent with any number of
eventualities, including a weekly trip to the ATM, the purchase of a few
tickets to a baseball game, or a trip to the grocery store. As we have
often explained, and as I think it important to emphasize in this case
with respect to both the money found in Thomas’s possession and the
totality of the circumstances, “when two reasonable inferences can be
drawn from a piece of evidence,” such evidence can give rise only “to a
suspicion, and, without additional evidence, is insufficient to support
guilt.” State v. Truesdell, 679 N.W.2d 611, 618–19 (Iowa 2004).
In cases like this where reasonable inferences other than the ones
the State urges may be drawn, I would conclude the evidence cannot
support a finding of guilt. See id.; Cashen, 666 N.W.2d at 572–73; cf.
George H. Singer, Constructive Possession of Controlled Substances: A
North Dakota Look at A Nationwide Problem, 68 N.D. L. Rev. 981, 1008
(1992) (noting joint occupancy cases require “the most exacting scrutiny”
and “possession cannot be established by virtue of the fact that the
38
defendant has been in the company of one who has a narcotic on his or
her person or is present in an area where narcotics are found,” and
explaining “[i]ndependent evidence that links each defendant to the
contraband must be presented”).
Taking all the evidence together, then, I conclude Thomas’s brief
proximity to where the drugs were eventually discovered and his strong
reluctance to interact with the police cannot constitute substantial
evidence of his possession of the marijuana and cocaine. Numerous
other equally plausible explanations of the sequence of events linking the
marijuana and cocaine to others abound here, and I thus cannot find the
State’s evidence was “wholly inconsistent with any rational” explanation
of Thomas’s innocence. See Reeves, 209 N.W.2d at 21 (quoting
Schurman, 205 N.W.2d at 734). Accordingly, I conclude the district court
erred in failing to grant Thomas’s motion for directed verdict on the
possession charges and I would therefore affirm the well-reasoned
opinion of the court of appeals.
I also think it prudent to note that as of mid-year 2013, there were
approximately 1860 individuals incarcerated in Iowa prisons for drug
offenses as their most serious offense. See Div. of Criminal & Juvenile
Justice Planning, Iowa Dep’t of Human Rights, Iowa Prison Population
Forecast FY2013–2023, at 26 (2013) [hereinafter 2023 Forecast] (“[T]he
percent of inmates serving sentences for drug crimes (as their most
serious offense) has increased from two percent in 1988 . . . to 23
percent in 2001, remaining at 23 percent in 2013 . . . .”); id. at 12 (“Drug
admissions have been one of the driving forces behind rising prison
populations in Iowa for more than the past decade, reaching their peak
in FY2004, when 32 percent of the new inmates entering prison were
committed for drug offenses. More broadly, between FY2004 and
39
FY2013, nearly 27 percent of Iowa’s prison population has entered prison
after conviction for drug crimes.”). The doctrine of constructive
possession is a court-made construct. This court has historically limited
the doctrine’s application in drug cases by upholding convictions only
when the State has linked a defendant to illegal substances through
proof that establishes his dominion and control and thereby excluded
other persons jointly occupying a space who might also be suspected of
having some connection with the contraband as a consequence of their
presence. Put another way, we have acted as careful gatekeepers of a
court-made doctrine and by doing so have avoided exacerbating the
overcrowding of our prisons with drug offenders. See 2023 Forecast, at 3
(“By June 30, 2014, Iowa’s prison population is expected to exceed
official capacity by about 750 inmates, or by about 10 percent, if current
offender behaviors and justice system trends, policies, and practices
continue. . . .”); Div. of Criminal & Juvenile Justice Planning, Iowa Dep’t
of Human Rights, Public Safety Advisory Board Report to the Iowa
General Assembly 3 (2013) [hereinafter PSAB Report] (“Eliminating
mandatory sentences for low/low moderate risk [drug] offenders would
result in cost savings without changing return-to-prison rates.”).
Moreover, our careful application of our possession jurisprudence in the
past has been consistent with our distaste for systems of selective
prosecution and our respect for the autonomy rights of individuals
engaging in legal social behavior. See Michael S. Deal, United States v.
Walker: Constructive Possession of Controlled Substances: Pushing the
Limits of Exclusive Control, 2 J. Pharmacy & L., 401, 405 (1994) (noting
in the absence of a standard like the one advocated by Whitebread and
Stevens, “numerous problems arise in conjunction with use of the
constructive possession doctrine; including, the difficulty courts have in
assessing liability in possession cases, liability for presence at a place
40
where drugs are being used and the creation of a system of selective law
enforcement”); see also 2023 Forecast, at 13 (“Another factor pertaining
to drug commitments that bears continued inspection is the relationship
between Iowa’s historically high rate of African-American imprisonment
and drug commitments.”); PSAB Report, at x (“The over-representation of
African-Americans in the prison population has been an ongoing issue
for Iowa.”). I dissent here because I believe the court’s decision today is
inconsistent with these values and takes us in a markedly different
direction.
Wiggins and Appel, JJ., join this dissent.