IN THE COURT OF APPEALS OF IOWA
No. 21-1163 Filed May 25, 2022
CLAY THOMAS PAULSON, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Boone County, John R. Flynn,
Judge.
Clay Paulson appeals the denial of his application for postconviction relief.
AFFIRMED.
Jesse A. Macro Jr. of Macro & Kozlowski, LLP, West Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., and Vaitheswaran and Chicchelly, JJ. 2
VAITHESWARAN, Judge.
The State charged Clay Paulson with several crimes arising from a traffic
stop in Boone, Iowa, and an inventory search of a backpack in the vehicle. A jury
found Paulson guilty of possession of a controlled substance with intent to deliver,
a tax-stamp violation, and possession of a prescription drug without a prescription.
The court of appeals affirmed the findings of guilt as well as the district court’s
conclusion that the probative value of certain text messages outweighed the
prejudicial effect. State v. Paulson, No. 17-2097, 2018 WL 6706221, at *1–2 (Iowa
Ct. App. Dec. 19, 2018). The court preserved for postconviction relief Paulson’s
contention that the messages constituted inadmissible hearsay evidence. Id. at *2.
Paulson filed a postconviction-relief application alleging his trial attorney
was ineffective (1) in failing to “properly object to hearsay regarding” the text
messages and properly preserve the issue for appellate review and (2) in failing to
“file a motion to suppress” under State v. Ingram, 914 N.W.2d 794 (Iowa 2018), on
the ground that “law enforcement searched a bag/backpack as part of an inventory
search and did not first obtain a warrant.” The postconviction court denied the
application following an evidentiary hearing.
On appeal, Paulson reprises the same two arguments. To prevail, he must
show (1) deficient performance and (2) prejudice. See Strickland v. Washington,
466 U.S. 668, 687 (1984). “To establish the first prong, [he] must show [] counsel
‘made errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment.’” State v. Brown, 930 N.W.2d
840, 855 (Iowa 2019) (quoting Strickland, 466 U.S. at 687). To establish the
second prong, he “must prove by a reasonable probability that, but for counsel’s 3
failure to perform an essential duty, the result of the proceeding would have been
different.” State v. Booth-Harris, 942 N.W.2d 562, 577 (Iowa 2020); accord State
v. Boothby, 951 N.W.2d 859, 865 (Iowa 2020) (“To meet the prejudice prong of his
ineffective-assistance claim, [the defendant] would have to show that without [the
exhibits], the jury would have had reasonable doubt about his guilt.”). Our review
is de novo. See State v. Doolin, 942 N.W.2d 500, 507 (Iowa 2020).
I. Hearsay – Text Messages
Three of the four text messages Paulson challenges on appeal—
Exhibits 10, 11, and 14—were drafted by a passenger in the vehicle. At trial, an
officer testified the exhibits colloquially referenced methamphetamine, money, and
the drug ecstasy. The fourth challenged message—Exhibit 12—was a text from
Paulson to the passenger stating they could “drink smoke and blow lines.” The
officer opined, “Based on the totality of everything, including the backpack, the
messages and the prior interaction amongst them, it appeared that Mr. Paulson
was engaged in selling various controlled substances.” The trial court overruled
objections to the exhibits without explicitly addressing defense counsel’s hearsay
objection. For the following reasons, we conclude there is no reasonable
probability that the outcome would have been different had counsel succeeded in
having the text messages excluded on hearsay grounds.
First, the district court instructed the jury to disregard references to
methamphetamine. The instruction was as follows: “There was testimony of
methamphetamine. . . . The defendant in this case is not charged with anything
related to methamphetamine, so you are instructed not to consider that testimony
against the defendant or to use it against the defendant in your deliberations in the 4
case.” Although the instruction preceded the officer’s summary of the text
message containing a methamphetamine reference, it was generic enough to
apprise the jury that methamphetamine use, delivery, or intent to deliver was not
an issue. See State v. Hanes, 790 N.W.2d 545, 552 (Iowa 2010) (“We presume
juries follow the court’s instructions.”).
Second, the text messages and the officer’s characterization of their import
were cumulative of duly admitted testimony establishing Paulson’s intent to deliver.
As noted on direct appeal, Paulson was seated in the front passenger seat of the
vehicle that was stopped. Paulson, 2018 WL 6706221, at *1. Officers seized a
backpack in that vicinity. Id.1 At trial, the Boone police chief testified to the
contents of the backpack, which included “a sealed storage container” with “some
other pills that were individually packaged into small baggies.” An officer explained
why the baggies were important. In his words, “the way I see narcotics packaged
are generally in those small you call them Ziploc baggies . . . .” He stated the
baggies appeared to be “[n]ew.” He also testified that 176 pills were found in the
backpack.
Third, although one of the messages referred to ecstasy, which was not
among the drugs found in the backpack, Paulson’s attorney vigorously cross-
examined the officer on this point, mitigating the prejudicial effect of the reference.
1 In an appeal from separate convictions for suborning perjury and solicitation to suborn perjury, the court of appeals concluded, “[T]he State failed to prove the woman’s statement to the police officer concerning Paulson’s possession of a starred backpack was admissible under the forfeiture-by-wrongdoing exception to the hearsay rule. Because the evidence was inadmissible, we reverse and remand for a new trial.” State v. Paulson, No. 17-1668, 2019 WL 1486395, at *5 (Iowa Ct. App. Apr. 3, 2019). 5
Because Paulson did not establish that he was prejudiced by counsel’s
failure to obtain a ruling on his hearsay objection, we affirm the postconviction
court’s denial of his ineffective-assistance-of-counsel claim.
II. Failure to File Suppression Motion – State v. Ingram
The supreme court addressed the constitutionality of warrantless inventory
searches in State v. Ingram, 914 N.W.2d 794 (Iowa 2018). The court held that
“[e]ven if . . . the police were entitled to seize the car,” “absent a knowing and
voluntary consent,” a search of a “bag—a closed container” found in the car “was
impermissible.” Ingram, 914 N.W.2d at 820. The court instructed:
Absent specific consent to search them, . . . police must inventory closed containers left behind in the vehicle as a unit . . . .
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IN THE COURT OF APPEALS OF IOWA
No. 21-1163 Filed May 25, 2022
CLAY THOMAS PAULSON, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Boone County, John R. Flynn,
Judge.
Clay Paulson appeals the denial of his application for postconviction relief.
AFFIRMED.
Jesse A. Macro Jr. of Macro & Kozlowski, LLP, West Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., and Vaitheswaran and Chicchelly, JJ. 2
VAITHESWARAN, Judge.
The State charged Clay Paulson with several crimes arising from a traffic
stop in Boone, Iowa, and an inventory search of a backpack in the vehicle. A jury
found Paulson guilty of possession of a controlled substance with intent to deliver,
a tax-stamp violation, and possession of a prescription drug without a prescription.
The court of appeals affirmed the findings of guilt as well as the district court’s
conclusion that the probative value of certain text messages outweighed the
prejudicial effect. State v. Paulson, No. 17-2097, 2018 WL 6706221, at *1–2 (Iowa
Ct. App. Dec. 19, 2018). The court preserved for postconviction relief Paulson’s
contention that the messages constituted inadmissible hearsay evidence. Id. at *2.
Paulson filed a postconviction-relief application alleging his trial attorney
was ineffective (1) in failing to “properly object to hearsay regarding” the text
messages and properly preserve the issue for appellate review and (2) in failing to
“file a motion to suppress” under State v. Ingram, 914 N.W.2d 794 (Iowa 2018), on
the ground that “law enforcement searched a bag/backpack as part of an inventory
search and did not first obtain a warrant.” The postconviction court denied the
application following an evidentiary hearing.
On appeal, Paulson reprises the same two arguments. To prevail, he must
show (1) deficient performance and (2) prejudice. See Strickland v. Washington,
466 U.S. 668, 687 (1984). “To establish the first prong, [he] must show [] counsel
‘made errors so serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment.’” State v. Brown, 930 N.W.2d
840, 855 (Iowa 2019) (quoting Strickland, 466 U.S. at 687). To establish the
second prong, he “must prove by a reasonable probability that, but for counsel’s 3
failure to perform an essential duty, the result of the proceeding would have been
different.” State v. Booth-Harris, 942 N.W.2d 562, 577 (Iowa 2020); accord State
v. Boothby, 951 N.W.2d 859, 865 (Iowa 2020) (“To meet the prejudice prong of his
ineffective-assistance claim, [the defendant] would have to show that without [the
exhibits], the jury would have had reasonable doubt about his guilt.”). Our review
is de novo. See State v. Doolin, 942 N.W.2d 500, 507 (Iowa 2020).
I. Hearsay – Text Messages
Three of the four text messages Paulson challenges on appeal—
Exhibits 10, 11, and 14—were drafted by a passenger in the vehicle. At trial, an
officer testified the exhibits colloquially referenced methamphetamine, money, and
the drug ecstasy. The fourth challenged message—Exhibit 12—was a text from
Paulson to the passenger stating they could “drink smoke and blow lines.” The
officer opined, “Based on the totality of everything, including the backpack, the
messages and the prior interaction amongst them, it appeared that Mr. Paulson
was engaged in selling various controlled substances.” The trial court overruled
objections to the exhibits without explicitly addressing defense counsel’s hearsay
objection. For the following reasons, we conclude there is no reasonable
probability that the outcome would have been different had counsel succeeded in
having the text messages excluded on hearsay grounds.
First, the district court instructed the jury to disregard references to
methamphetamine. The instruction was as follows: “There was testimony of
methamphetamine. . . . The defendant in this case is not charged with anything
related to methamphetamine, so you are instructed not to consider that testimony
against the defendant or to use it against the defendant in your deliberations in the 4
case.” Although the instruction preceded the officer’s summary of the text
message containing a methamphetamine reference, it was generic enough to
apprise the jury that methamphetamine use, delivery, or intent to deliver was not
an issue. See State v. Hanes, 790 N.W.2d 545, 552 (Iowa 2010) (“We presume
juries follow the court’s instructions.”).
Second, the text messages and the officer’s characterization of their import
were cumulative of duly admitted testimony establishing Paulson’s intent to deliver.
As noted on direct appeal, Paulson was seated in the front passenger seat of the
vehicle that was stopped. Paulson, 2018 WL 6706221, at *1. Officers seized a
backpack in that vicinity. Id.1 At trial, the Boone police chief testified to the
contents of the backpack, which included “a sealed storage container” with “some
other pills that were individually packaged into small baggies.” An officer explained
why the baggies were important. In his words, “the way I see narcotics packaged
are generally in those small you call them Ziploc baggies . . . .” He stated the
baggies appeared to be “[n]ew.” He also testified that 176 pills were found in the
backpack.
Third, although one of the messages referred to ecstasy, which was not
among the drugs found in the backpack, Paulson’s attorney vigorously cross-
examined the officer on this point, mitigating the prejudicial effect of the reference.
1 In an appeal from separate convictions for suborning perjury and solicitation to suborn perjury, the court of appeals concluded, “[T]he State failed to prove the woman’s statement to the police officer concerning Paulson’s possession of a starred backpack was admissible under the forfeiture-by-wrongdoing exception to the hearsay rule. Because the evidence was inadmissible, we reverse and remand for a new trial.” State v. Paulson, No. 17-1668, 2019 WL 1486395, at *5 (Iowa Ct. App. Apr. 3, 2019). 5
Because Paulson did not establish that he was prejudiced by counsel’s
failure to obtain a ruling on his hearsay objection, we affirm the postconviction
court’s denial of his ineffective-assistance-of-counsel claim.
II. Failure to File Suppression Motion – State v. Ingram
The supreme court addressed the constitutionality of warrantless inventory
searches in State v. Ingram, 914 N.W.2d 794 (Iowa 2018). The court held that
“[e]ven if . . . the police were entitled to seize the car,” “absent a knowing and
voluntary consent,” a search of a “bag—a closed container” found in the car “was
impermissible.” Ingram, 914 N.W.2d at 820. The court instructed:
Absent specific consent to search them, . . . police must inventory closed containers left behind in the vehicle as a unit . . . . Specifically, the police should advise the owner or operator of the options to impoundment; personal items may be retrieved from the vehicle; and if the vehicle is impounded, containers found within the vehicle will not be opened but stored for safekeeping as a unit unless the owner or operator directs otherwise.
Id. (internal citations omitted).
On appeal, Paulson contends “[t]he warrantless search” of his backpack,
“no matter what title given to it by the State of Iowa, violated both federal and state
constitutional law.” His broad assertion that the search fell outside any “of the
narrowly drawn exceptions to the warrant requirement” was not decided by the
postconviction court. The court limited its discussion to Ingram. We will do the
same.
The postconviction court concluded:
At the time of Mr. Paulson’s jury trial, . . . the Boone Police Department’s impoundment policy and inventory policy, including searches of containers within a vehicle, was permissible under Iowa law. Trial counsel did not have to predict the future to be effective and he certainly did not have the luxury of a crystal ball to foresee 6
the titanic shift in the law at the time of his representation of Mr. Paulson that was months away.
(Citations omitted.) The court’s reasoning finds support in the testimony of
Paulson’s experienced trial attorney, who stated he “did not see that as a legal
issue since it was common practice up until Ingram . . . to allow evidence in an
inventory search to come in as long as they could lay proper foundation” and “it
was . . . settled law or fairly settled that stuff found in inventory” was “admissible.”
On our de novo review, we fully concur in the court’s conclusion. See Doolin, 942
N.W.2d at 507 (stating “counsel will not be found ineffective for a lack of
‘clairvoyance’” (quoting Millam v. State, 745 N.W.2d 719, 722 (Iowa 2008)));
Brown, 930 N.W.2d at 855 (noting counsel is “not required to predict changes in
the law”).
We affirm the postconviction court’s denial of Paulson’s postconviction-
relief application.