In the Court of Appeals of Iowa s10

IN THE COURT OF APPEALS OF IOWA

No. 3-839 / 02-1931 Filed March 10, 2004

STATE OF IOWA, Plaintiff-Appellee, vs. JOSHUA MARLOW REDMOND, Defendant-Appellant.

Appeal from the Iowa District Court for Polk County, Gregory A. Hulse,

Judge.

Joshua Redmond appeals from the judgment entered upon his convictions, following jury trial, for conspiracy to deliver crack cocaine (enhanced as a second offense) and for possession of marijuana. AFFIRMED.

Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney

General, John Sarcone, County Attorney, and Daniel Voogt, Assistant County

Attorney, for appellee.

Considered by Huitink, P.J., and Zimmer and Miller, J.J. 2

MILLER, J.

Joshua Redmond appeals from his convictions, following jury trial, for conspiracy to deliver crack cocaine (enhanced as a second offense) and for possession of marijuana. He contends there was insufficient evidence to convict him on the conspiracy charge. He also claims his trial counsel was ineffective.

We affirm the convictions and preserve the ineffective assistance of counsel claim for a possible postconviction proceeding.

I. BACKGROUND FACTS AND PROCEEDINGS.

The record reveals the following facts. On May 17, 2002 at approximately

5:30 p.m. Des Moines police officer John Scarlett and his partner, Sone Cam, responded to a report of a man with a gun at an apartment building. A woman consented to the officer’s entry into the apartment. Once inside Scarlett and

Cam entered a bedroom and saw Redmond sitting on a bed and a co-defendant,

Anthony Riser, sitting on the floor. Redmond was preparing to light a marijuana cigar or “blunt.” Scarlett seized the blunt, searched Redmond, and found $637 in cash on him. Cam searched Riser, found a baggy of marijuana in his pants pocket, and handcuffed him behind his back. Officer Cam then saw Riser flip another baggie out of his pocket and step on it to try to smash it into the floor. As

Cam bent down to pick up the baggie he noticed another baggie on the bed that

Redmond was sitting on. Lab analysis showed that the substance in both the baggie on the floor and the baggie on the bed was crack cocaine. No gun was ever found, nor was any paraphernalia used to consume crack cocaine found on the premises. 3

Redmond was charged by trial information with conspiracy to deliver crack cocaine (enhanced as a second offense) in violation of Iowa Code section

124.401(1)(c)(3) (2001) (Count I), and possession of marijuana in violation of section 124.401(5) (Count II).

At trial Redmond’s girlfriend, Melinda Hawthorne, testified that she and

Redmond were living together and on the morning in question (the 17th of the month) she had given him the cash that was found on him to pay their rent. She testified the rent was $525, it was due on the first of the month, and that she normally pays the rent herself.

Both Officer Cam and state criminologist Paul Hermsen testified at trial for the State regarding the sale of crack cocaine generally. Their testimony indicated that crack cocaine is typically sold in $10 and $20 rocks and the crack cocaine seized here consisted of ten $20 rocks, weighing a total of 4.54 grams, with a street value of $450. Officer Cam also testified that he found the second baggie of crack cocaine on the bed next to where Redmond was sitting.

Hermsen testified that the crack cocaine found here was packaged in a manner consistent with an intent to sell the drug and that the amount found was more consistent with an intent to sell than with personal use because it would be an unusually large quantity for mere personal use. He further testified that the amount of cash found on Redmond, particularly the fact it was made up of mostly small bills, supports a conclusion that the money was proceeds from the sale of drugs. Finally, Hermsen stated that the lack of personal use paraphernalia was significant in rendering his opinion that the crack cocaine was more consistent with an intent to sell than with personal use. 4

The jury found Redmond guilty as charged. Redmond stipulated this was his second offense and the court sentenced him to a term of incarceration not to exceed twenty years on Count I and a term of six months on Count II. The court ordered the sentences to be served concurrently.

Redmond appeals his conviction for conspiracy to deliver crack cocaine, claiming the trial court erred in denying his motion for judgment of acquittal because there is insufficient evidence in the record to support that conviction. 1

He further contends his defense counsel was ineffective for failing to cross- examine Officer Cam about the fact Riser told Cam the crack cocaine was

Riser’s and not Redmond’s.

II. MERITS.

A. Sufficiency of the Evidence.

Our scope of review of sufficiency-of-evidence challenges is for correction of errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). In reviewing such challenges we give consideration to all the evidence, not just that supporting the verdict, and view such evidence in the light most favorable to the

State. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998). We will uphold a trial court's denial of a motion for judgment of acquittal if there is substantial evidence to support the defendant's conviction. State v. Kirchner, 600 N.W.2d

330, 333 (Iowa Ct. App. 1999). Substantial evidence is such evidence as could convince a rational fact finder that the defendant is guilty beyond a reasonable

1 Although Redmond appeals from the judgment entered upon jury verdicts finding him guilty of both conspiracy to deliver crack cocaine and possession of marijuana, he makes no argument regarding his conviction for possession of marijuana. Therefore, any challenge to that conviction is waived. See Iowa R. App. P. 6.14(c) (“Failure in the brief to state, to argue, or to cite authority in support of an issue may be deemed waiver of that issue.”). 5 doubt. Id. at 334. The court’s denial of Redmond’s motion for judgment of acquittal based on insufficient evidence of a conspiracy to deliver crack cocaine preserved error for our review.

Redmond was charged and convicted under Iowa Code section

124.401(1)(c)(3). Section 124.401(1) provides in relevant part that “it is unlawful for any person to . . . conspire with one or more other persons to . . . possess with the intent to . . . deliver a controlled substance.” Redmond argues there was insufficient evidence to prove the existence of a conspiracy. Conspiracy has been defined as “a combination or agreement between two or more persons to do or accomplish a criminal or unlawful act, or to do a lawful act in an unlawful manner.” State v. Ross, 573 N.W.2d 906, 914 (Iowa 1998); see also Iowa Code

§ 706.1(1) (defining the crime of conspiracy). Redmond specifically challenges whether there was sufficient evidence of an “agreement” between him and Riser.

“Prior decisions have described an agreement to form a conspiracy as a ‘concert of free wills,’ ‘union of minds of at least two persons,’ and ‘a mental confederation involving at least two persons.’” State v. Speicher, 625 N.W.2d 738, 741-42

(Iowa 2001) (quoting State v. Boyer, 342 N.W.2d 497, 499 (Iowa 1984)).

To constitute a conspiracy an agreement need not be formal or express; a tacit understanding is sufficient. State v. Casady, 597 N.W.2d 801, 805 (quoting

State v. Mapp, 585 N.W.2d 746, 748 (Iowa 1998)). The State may prove an agreement through circumstantial evidence alone. Id. at 804. “[T]he agreement may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the alleged conspirators.” Id. at 805. We believe that based 6 on the evidence in the record a reasonable factfinder could conclude that Riser and Redmond had, at the least, a tacit agreement to deliver crack cocaine.

Although the police only found crack cocaine on Riser, Redmond had

$637 in cash on him and there was a second baggie of crack cocaine on the bed next to where he was sitting. Testimony indicated that the quantity and denominations of the cash found on Redmond were consistent with proceeds from the sale of drugs. Further, the explanation offered by Redmond concerning the money, Hawthorne’s testimony that she had given Redmond the money to pay the rent, was suspect for several reasons. Notably, Redmond did not give

Hawthorne’s address as his address when he was arrested, the amount found on

Redmond was not the amount of rent that was due, the date in question was well after the date the rent was due, and Redmond clearly did not pay the rent with the money Hawthorne claimed to have given him that morning to pay the rent because it was still on his person when he was arrested that evening.

A jury is free to believe or disbelieve any testimony as it chooses and to give as much weight to the evidence as, in its judgment, such evidence should receive. State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996). The very function of the jury is to sort out the evidence and place credibility where it belongs. State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993). Accordingly, the jury was free to disbelieve Hawthorne’s testimony regarding the cash found on Redmond’s person, as it may well have, and instead find the cash to be evidence that

Redmond was involved with Riser in drug dealing activities and thus guilty of conspiracy to deliver crack cocaine as charged. 7

In addition, the evidence shows that both the packaging and the quantity of crack cocaine found was consistent with an intent to deliver and inconsistent with mere personal use. Furthermore, only Redmond was sitting on the bed where the second baggie of crack cocaine was found by Officer Cam. Riser was sitting on the floor. Finally, the officers found no paraphernalia to consume crack cocaine on the premises.

We conclude there is sufficient evidence in the record for a rational juror to find beyond a reasonable doubt that Redmond had in fact agreed with Riser to deliver crack cocaine. The trial court did not err in denying Redmond’s motion for judgment of acquittal because there is substantial evidence in the record to support Redmond’s conviction for conspiracy to deliver crack cocaine.

B. Ineffective Assistance of Counsel.

When there is an alleged denial of constitutional rights, such as an allegation of ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Osborn v. State, 573 N.W.2d 917, 920 (Iowa

1998). To prove trial counsel was ineffective the defendant must show counsel failed to perform an essential duty and that prejudice resulted from counsel’s error. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.

Ed. 2d 674, 693 (1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).

Redmond claims his trial counsel was ineffective in cross-examining

Officer Cam. He alleges that when Cam entered the bedroom where he and

Riser were sitting, Riser told Cam that the crack cocaine was his (Riser’s) and 8 not Redmond’s. Redmond argues that his attorney was ineffective for failing to cross-examine Cam on this specific point.

Generally, we do not resolve claims of ineffective assistance of counsel on direct appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (citing State v.

Kinkead, 570 N.W.2d 97, 103 (Iowa 1997)). We prefer to leave ineffective- assistance-of-counsel claims for postconviction relief proceedings. State v.

Lopez, 633 N.W.2d 774, 784 (Iowa 2001); State v. Ceron, 573 N.W.2d 587, 590

(Iowa 1997). “[W]e preserve such claims for postconviction relief proceedings, where an adequate record of the claim can be developed and the attorney charged with providing ineffective assistance may have an opportunity to respond to defendant's claims.” Biddle, 652 N.W.2d at 203.

As set forth above, Redmond can only succeed on his ineffectiveness claim by establishing both that his counsel failed to perform an essential duty and that prejudice resulted. Wemark, 602 N.W.2d at 814; Hall v. State, 360 N.W.2d

836, 838 (Iowa 1985). No record has yet been made before the trial court on this issue. Trial counsel has not been given an opportunity to explain her actions and the trial court has not considered and ruled on the ineffectiveness claim. Under these circumstances, we pass the issue in this direct appeal and preserve it for a possible postconviction proceeding. State v. Bass, 385 N.W.2d 243, 245 (Iowa

1986).

III. DISPOSITION AND CONCLUSION.

For all of the reasons set forth above, we conclude there was sufficient evidence in the record for a rational factfinder to conclude beyond a reasonable doubt that Redmond had, at the least, a tacit agreement with Riser to deliver 9 crack cocaine. The trial court did not err in denying Redmond’s motion for judgment of acquittal. We affirm Redmond’s convictions and preserve his specified claim of ineffective assistance of trial counsel for a possible postconviction relief proceeding.

AFFIRMED.