State of Iowa v. Quayshan Lamontez Moore

IN THE COURT OF APPEALS OF IOWA
No. 18-0123
Filed March 20, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
QUAYSHAN LAMONTEZ MOORE,
Defendant-Appellant.
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Appeal from the Iowa District Court for Scott County, John D. Telleen
(trial) and Henry W. Latham II (sentencing), Judges.
Quayshan Moore appeals from judgment and sentences following his
multiple convictions. AFFIRMED.
Eric D. Tindal of Keegan Tindal & Mason, Iowa City, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Considered by Potterfield, P.J., and Tabor and Bower, JJ.
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POTTERFIELD, Presiding Judge.
Quayshan Moore appeals following a jury trial that resulted in convictions
for possession of crack cocaine with intent to deliver, in violation of Iowa Code
section 124.401(1)(c)(3) and 124.401(1)(e) (2017) (firearm enhancement); failure
to affix a drug tax stamp, in violation of section 453B.12; possession of a firearm
by a domestic violence offender, in violation of section 724.26(2)(a); carrying
weapons, in violation of section 724.4(1); interference with official acts, in
violation of section 719.1(1)(f); and assault causing bodily injury, in violation of
section 708.2(2). Moore challenges the sentences imposed and claims trial
counsel was ineffective in stipulating that he was a prohibited person and in
failing to challenge the sufficiency of evidence of his intent to deliver cocaine.
A. Sentencing.
Moore first asserts the district court failed to state sufficient reasons for
imposing consecutive sentences. We review sentencing decisions for errors of
law. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We will only reverse
the district court if the court abused its discretion or if there is a defect in the
sentencing procedure. State v. Letscher, 888 N.W.2d 880, 883 (Iowa 2016).
At the sentencing hearing, the State noted that count one, the drug
offense with the firearm enhancement, required incarceration. The State
recommended that the sentence on that count run consecutive “at a minimum at
least to” the conviction of possession of a firearm as a domestic violence
offender, noting the two counts “are absolutely separate and distinct acts of
criminal activity.” The defense asked that all sentences run concurrently
because Moore was facing a twenty-year sentence on the first count and “to
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keep him in there for an extra five . . . doesn’t do him any more service in his
rehabilitation.”
Here, the sentencing proceeding involved the six counts following the jury
trial, as well as three other charges to which Moore pled guilty. The court
imposed terms of incarceration on all nine charges and stated:
As to any consecutive or concurrent sentencing in all of
these cases, it is the court’s determination that the State’s
recommendation as to Count 3 in FECR386810 [possession by a
prohibited person] is appropriate given the severity of the offenses,
and I will make that count consecutive, but I will deny the State’s
other requests as to the other files. The other files will be served
concurrently. I feel for rehabilitation to occur in another additional
five years of incarceration is not necessary. I would hope that Mr.
Moore has learned from the seriousness of these offenses and the
sentencing that I have imposed at this time.
A court imposing consecutive sentences must state on the record its
reasons for imposing consecutive sentences. State v. Jacobs, 607 N.W.2d 679,
690 (Iowa 2000). At minimum, a cursory explanation must be provided to allow
review of the trial court’s discretionary action. Id. Our review of the sentencing
transcript shows the court gave adequate reasons for requiring the consecutive
sentences.
B. Ineffective assistance.
1. Stipulation. Moore next asserts his counsel was ineffective in
stipulating that he was a person prohibited from carrying a firearm and for failing
to challenge the sufficiency of the evidence of his intent to deliver to sustain the
conviction for possession with intent to deliver.
We review ineffective-assistance-of-counsel claims de novo. Nguyen v.
State, 878 N.W.2d 744, 750 (Iowa 2016). The proponent must show (1) counsel
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breached an essential duty and (2) prejudice resulted. See Strickland v.
Washington, 466 U.S. 668, 687 (1984).
A defendant may raise an ineffectiveness claim on direct appeal if they
have “reasonable grounds to believe that the record is adequate to address the
claim on direct appeal.” Iowa Code § 814.7(2). Ordinarily, we preserve such
claims for postconviction-relief proceedings. State v. McNeal, 867 N.W.2d 91,
105 (Iowa 2015).
“We prefer to [p]reserve such questions for postconviction
proceedings so the defendant’s trial counsel can defend against the
charge.” This is especially appropriate when the challenged
actions concern trial strategy or tactics counsel could explain if a
record were fully developed to address those issues. “We will
resolve the claims on direct appeal only when the record is
adequate.” It is a rare case in which the trial record alone is
sufficient to resolve a claim on direct appeal.
Id. at 105-06 (citations omitted).
This is not one of those rare cases where the trial record is alone sufficient
to resolve the claim related to the stipulation. Moore challenges the adequacy of
the underlying no-contact-order hearing for which we have no record. Moreover,
there may well be tactical reasons for the stipulation that he was a prohibited
person. Therefore, we preserve the claim for possible postconviction-relief
proceedings. See State v. Clay, 824 N.W.2d 488, 501-02 (Iowa 2012).
2. Sufficiency of evidence of intent to deliver. With respect to his
claim that counsel should have challenged the sufficiency of the evidence of his
intent to deliver, we conclude Moore cannot prove prejudice because there is
substantial evidence from which the jury could find an intent to deliver.
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“Because it is difficult to prove intent by direct evidence, proof of intent
usually consists of circumstantial evidence and the inferences that can be drawn
from that evidence.” State v. Grant, 722 N.W.2d 645, 647-48 (Iowa 2006).
On August 16, 2017, law enforcement responded to a 911 call from
Moore’s ex-wife reporting Moore had hit her and was waving a gun. Moore left
the residence before police arrived. However, police learned Moore had packed
a bag and called someone to pick him up before leaving the residence. A person
matching the ex-wife’s description of Moore was seen by Captain Keith Kimball a
few blocks away sitting at the end of a driveway. Captain Kimball observed the
person get into a car that pulled up. The captain followed the car and, when
other police vehicles were nearby, activated his emergency lights.
As soon as Captain Kimball turned on his lights, the suspect opened the
back door of the car, jumped out, and ran. Captain Kimball stopped and ran after
the man, as did Detective James Bennett. Detective Bennett testified Moore had
outstanding warrants and was “known to run.” The detective noticed there was a
heavy object “swaying” in the suspect’s pocket as he ran. The man ignored
orders to stop and ran into a creek. Detective Bennett pursued him over a
retaining wall and into the creek. When the man climbed out of the creek on the
other side, police intercepted him. The man denied he was Moore. However, his
ex-wife arrived at the scene and identified Moore. He continued to deny his
identity until his fingerprints were taken and compared to those on file.
Detective Bennett found a plastic baggie floating on the surface of the
creek through which Moore had run. The baggie contained approximately twelve
rocks of crack cocaine weighing 3.94 grams wrapped in three sandwich bags.
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Detective Bennett also found a $20 bill in the creek near the cocaine. About six
to eight feet away from the drugs, Detective Bennett found a black handgun.
At trial, Sergeant Douglas Scott, who supervises the Bettendorf Police
narcotics unit, testified that the dosage unit for crack cocaine is approximately
one-tenth of a gram and sells for approximately ten to twenty dollars. In his
experience, Sergeant Scott did not consider 3.94 grams—thirty-nine units
worth—of crack cocaine to be a personal use amount.
“The quantity and packaging of a controlled substance may be indicative
of an intent to deliver.” State v. See, 532 N.W.2d 166,169 (Iowa Ct. App. 1995).
Sergeant Scott’s expert opinion was that the amount and packaging of the crack
cocaine found in the creek was not for personal use. Viewing the evidence in the
light most favorable to the State and recognizing “[t]he jury was free to believe or
disbelieve the defendant’s theory that the packages were more consistent with
personal use rather than distribution,” there was substantial evidence of intent to
deliver to sustain the conviction. See id. Moore cannot prove prejudice on this
claim of ineffective assistance of counsel.
We affirm the convictions and sentences. We preserve Moore’s claim that
counsel was ineffective in stipulating Moore was a person prohibited from
possessing a firearm.
AFFIRMED.