State v. McDowell, 99-0227.

CourtUnited States State Supreme Court of Iowa
Citation622 N.W.2d 305
Docket NumberNo. 99-0227.,99-0227.
PartiesSTATE of Iowa, Appellee, v. Rodney Dale McDOWELL, Appellant.
Decision Date14 February 2001

Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Andrew B. Prosser, Assistant County Attorney, for appellee.

Considered en banc.

CARTER, Justice.

Defendant, Rodney Dale McDowell, appeals from his conviction and sentence for possession with intent to deliver a controlled substance while in immediate possession or control of a firearm in violation of Iowa Code sections 124.401(1)(c)(3), 124.401(1)(e) (1997). He urges that the evidence was insufficient to establish his immediate possession and control of a firearm. The court of appeals affirmed the judgment of the district court. After reviewing the record and considering the arguments presented, we vacate the judgment of the court of appeals. The judgment of the district court is reversed, and the case remanded for resentencing of defendant.

The evidence, viewed most favorably toward the State, reveals that prior to the initiation of these criminal charges defendant had on two occasions sold cocaine and cocaine base to a confidential informant working for the police. That informant testified that these controlled buys took place in the home of defendant's girlfriend, Bertha Mae Scott. He also testified that on seven other occasions within a five-month period preceding the controlled buys he had been in Scott's home when defendant was present and drugs were being sold.

Using information obtained from the informant, the police obtained a search warrant that was executed on Bertha Mae Scott's residence. During the search of that residence, police discovered and seized small plastic bags of crack cocaine base located in a closet and on the kitchen table. They also found and seized a police scanner, an electronic scale, and crack cocaine paraphernalia.

When police entered Scott's residence, defendant was in the northwest bedroom. The confidential informant testified that it was in this bedroom that the two controlled buys had been transacted. In that bedroom police found a letter addressed to defendant and Scott at the address where the warrant was being executed. In a closet in that bedroom they found two charts converting grams to ounces and ounces to pounds.1 Next to these charts on a shelf was a woman's purse containing a .22 caliber revolver. That pistol formed the basis for the charge involving immediate possession or control of a firearm.

Defendant testified that his principal place of residence was Waterloo. He claimed that he had come to Burlington to mediate a child custody squabble between his daughter and son-in-law who lived in that city. During part of this time, both his daughter and son-in-law were confined in the Des Moines County jail. Following his release from jail, defendant's son-in-law took one of defendant's daughter's children and absconded from the area. Defendant testified that he remained around to help his daughter recover her child. He stayed in the apartment of his daughter, but they eventually had to give it up for financial reasons. He testified that he frequently visited the Scott residence and slept there on occasion. He denied having any knowledge of the revolver that was contained in Scott's purse on the closet shelf or that a firearm of any kind was in the home.

Much of defendant's testimony concerning his living arrangements was corroborated by Ms. Scott. She also testified that defendant had no knowledge of the existence of the .22 caliber revolver. She testified that he did not live in her home, although he would visit frequently. Occasionally he would sleep with her in the northwest bedroom and other times he slept on a couch in the living room. She testified that the .22 revolver was hers and had been given to her by her ex-husband. She stated that she had never advised defendant of the gun's existence.

Defendant was convicted of two counts of delivery of a controlled substance as an habitual offender based on the two controlled buys. He was also convicted of possession with intent to deliver a controlled substance while in immediate possession or control of a firearm, which is a matter at issue on this appeal. Other facts relevant to this appeal will be discussed in connection with the legal issues presented.

I. The Sufficiency-of-the-Evidence Issue.

At trial defendant's counsel did not object to the sufficiency of the evidence to establish that he had immediate possession or control of the revolver found in the purse on the closet shelf. This omission is now the basis of a claim that defendant received ineffective assistance from his trial counsel. To establish such a claim requires the usual showing that counsel failed to perform an essential duty and that prejudice resulted therefrom. See, e.g., State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998)

.

In the present case, both the breach-of-duty component and the prejudice component of defendant's ineffective-assistance claim depend entirely on the merit of the claim that his trial counsel failed to assert. If a motion to withdraw the issue of firearm possession or control from the jury would have been successful and thus reduced defendant's sentence, a failure to make that motion was indeed a breach of an essential duty and was prejudicial. Conversely, if the evidence was sufficient to submit the issue of defendant's immediate possession or control of a firearm to the jury, the failure to challenge that action was not ineffective assistance of counsel.

On the merits of defendant's claim that the evidence was insufficient to show that he was in immediate possession or control of a firearm, defendant and the State are in agreement on some matters. These are:

(1) Based on State v. Eickelberg, 574 N.W.2d 1, 5 (Iowa 1997), immediate possession of a firearm means actual possession on one's person.
(2) Also based on Eickelberg, immediate control of a firearm may be established by showing that the defendant was in such close proximity to the weapon as to claim immediate dominion over it. Eickelberg, 574 N.W.2d at 5. Defendant does not dispute that he was within such proximity to the revolver on the closet shelf.
(3) To show either immediate possession or immediate control, it must be established that defendant had knowledge of the presence of the firearm.2

From the foregoing, it appears that this is an immediate-control case rather than an immediate-possession case. Defendant urges that, notwithstanding the proximity of the firearm to his person, the State failed to establish that he knew of the weapon's existence. The State contends that knowledge of the pistol's presence may be inferred from the surrounding facts. On this issue, we find the pronouncements made in State v. Reeves, 209 N.W.2d 18...

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36 cases
  • State v. Graves, 02-0358.
    • United States
    • United States State Supreme Court of Iowa
    • September 4, 2003
    ...could not rely on an inference of constructive possession based on Graves' alleged residence in Quick's house. See State v. McDowell, 622 N.W.2d 305, 308 (Iowa 2001). The only link the State had between Graves and the dried marijuana plant was the statement allegedly made by Graves to Offic......
  • In re Blaise
    • United States
    • United States State Supreme Court of Iowa
    • May 3, 2013
    ...principle that counsel's failure to raise a claim lacking merit will not ordinarily be deemed prejudicial. See State v. McDowell, 622 N.W.2d 305, 307 (Iowa 2001) (observing both breach and prejudice may “depend entirely on the merit of the claim,” and failing to distinguish breach from prej......
  • State v. Thomas, 12–1491.
    • United States
    • United States State Supreme Court of Iowa
    • May 30, 2014
    ...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 ......
  • State v. Henderson, 16-0575
    • United States
    • United States State Supreme Court of Iowa
    • March 9, 2018
    ...of a firearm could be "reasonably anticipated"). Of course, knowledge can be proved by circumstantial evidence. See State v. McDowell , 622 N.W.2d 305, 308 (Iowa 2001). The State notes the following: (1) Henderson knew Anderson possessed a weapon (although he didn’t regularly carry it with ......
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