IN THE COURT OF APPEALS OF IOWA
No. 13-1568 Filed February 11, 2015
STATE OF IOWA, Plaintiff-Appellee,
vs.
KRISTIN RENEE MURRAY, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Nancy S. Tabor,
Judge.
Defendant appeals her convictions for possession with intent to deliver a
controlled substance (crack cocaine) and failure to affix a drug tax stamp.
AFFIRMED.
Steven J. Drahozal of Drahozal Law Office, P.C., Dubuque, for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney
General, Michael J. Walton, County Attorney, and Kelly Cunningham, Assistant
County Attorney, for appellee.
Considered by Danilson, C.J., Doyle, J., and Mahan, S.J.* Tabor, J.,
takes no part.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
MAHAN, S.J.
Defendant Kristin Murray appeals her convictions for possession with
intent to deliver a controlled substance (crack cocaine) and failure to affix a drug
tax stamp. Considering the evidence presented at Murray’s trial, there is
substantial evidence to show she had actual possession of crack cocaine with
intent to deliver. Murray has not shown she received ineffective assistance due
to counsel’s failure to request an instruction giving the definition of possession.
We affirm her convictions.
I. Background Facts & Proceedings.
In the early morning of April 19, 2013, detectives with the Scott County
Special Operations Unit had a confidential informant purchase crack cocaine
from Karen Cathey at a motel with $100 in marked money. While the motel was
under surveillance due to the controlled purchase, Cathey left the motel in a red
car with Michigan license plates that was driven by another person. 1 Cathey was
arrested when she returned to the motel, and her cell phone was seized. One of
the contacts in Cathey’s cell phone was listed as “Diamond.”
Based on an interview with Cathey, the detectives obtained a search
warrant for a residence in Davenport. The red car with Michigan license plates
was parked outside the residence, and documents with the name of Kristin
Murray were found in the vehicle. When officers entered the residence, Murray
and a male, Lashawn Thurman, came downstairs dressed only in
undergarments. In a bedroom upstairs officers found a pair of men’s jeans on
1 The officers did not follow the vehicle because they were worried about the safety of the confidential informant, who had not exited the motel within the expected timeframe. 3
one side of a bed and a pair of women’s jeans on the other side of the bed. In
the pocket of the women’s jeans was 3.71 grams of crack cocaine.2 Next to the
pair of women’s jeans was a cell phone in a case with a diamond design on it.
Murray admitted this cell phone belonged to her. When officers called the
number associated with “Diamond” from Cathey’s cell phone, Murray’s cell phone
rang. Officers also found a purse in the residence containing documents
addressed to Murray. The purse contained $210 in cash, including some of the
marked money from the controlled drug purchase earlier that night. A digital
scale was also found in the residence.
A jury found Murray guilty of possession with intent to deliver a controlled
substance (crack cocaine), conspiracy to commit a non-forcible felony, and
failure to affix a drug tax stamp. The court denied Murray’s motions for judgment
of acquittal and for new trial. It determined Murray’s convictions for possession
with intent to deliver and conspiracy should be merged for purposes of
sentencing. Murray was sentenced to a term of imprisonment not to exceed
twenty-five years and five years on her respective convictions, to be served
concurrently. Murray now appeals her convictions.
II. Sufficiency of the Evidence.
Murray contends there is insufficient evidence in the record to show she
possessed crack cocaine with the intent to deliver. She asserts there is
insufficient evidence to show the women’s jeans that had crack cocaine in the
pocket belonged to her. Murray told officers she wore a size 14 and the jeans
were a size 11. She states the officers refused to allow her to try on the jeans in
2 The men’s jeans had 16.78 grams of crack cocaine in a pocket. 4
order to show they were too small for her. Murray points out the house was
rented by Tiana Johnson, the red car was rented by Olivia Oliver, and she had
been given a ride to the house by Stacy. Murray claims the jeans could have
belonged to any of these women.
We review claims challenging the sufficiency of the evidence in a criminal
case for the correction of errors at law. State v. Dalton, 674 N.W.2d 111, 116
(Iowa 2004). We will uphold the jury’s verdict when it is supported by substantial
evidence. State v. Hagedorn, 679 N.W.2d 666, 668 (Iowa 2004). “Evidence is
substantial if it would convince a rational fact finder that the defendant is guilty
beyond a reasonable doubt.” State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005).
We view the evidence in the light most favorable to the State, “including
legitimate inferences and presumptions that may fairly be deduced from the
record evidence.” State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005).
In order to establish possession of a controlled substance, the State must
prove a defendant “exercised dominion and control over the contraband, had
knowledge of the contraband’s presence, and had knowledge the material was a
narcotic.” State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014). This may be
established through actual possession or constructive possession. Id.
We will first address the theory of actual possession. The State may
prove actual possession through direct or circumstantial evidence. Id. A
defendant has actual possession of a controlled substance when it is found on
his or her person or there is substantial evidence the controlled substance was
on his or her person at some point in time. Id.; see also State v. Vance, 790
N.W.2d 775, 784 (Iowa 2010) (“Although the pseudoephedrine was not found on 5
Vance’s person at the time of the stop, substantial evidence supports the jury’s
finding that at one time Vance had actual possession of the pseudoephedrine
with the intent to manufacture methamphetamine.”).
We determine there is substantial evidence in the record to show Murray
had actual possession of the crack cocaine. When officers entered the
residence, there were only two people present—Murray and Thurman. There
was only one bedroom in the home that had furniture, including a mattress.
Murray and Thurman came downstairs wearing only undergarments. The jury
could infer that Murray and Thurman each took off their jeans and laid down on
the mattress to go to sleep, then came downstairs when the officers arrived to
execute the search warrant around 7:00 a.m., leaving their jeans on the floor
beside the bed.
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IN THE COURT OF APPEALS OF IOWA
No. 13-1568 Filed February 11, 2015
STATE OF IOWA, Plaintiff-Appellee,
vs.
KRISTIN RENEE MURRAY, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Nancy S. Tabor,
Judge.
Defendant appeals her convictions for possession with intent to deliver a
controlled substance (crack cocaine) and failure to affix a drug tax stamp.
AFFIRMED.
Steven J. Drahozal of Drahozal Law Office, P.C., Dubuque, for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney
General, Michael J. Walton, County Attorney, and Kelly Cunningham, Assistant
County Attorney, for appellee.
Considered by Danilson, C.J., Doyle, J., and Mahan, S.J.* Tabor, J.,
takes no part.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
MAHAN, S.J.
Defendant Kristin Murray appeals her convictions for possession with
intent to deliver a controlled substance (crack cocaine) and failure to affix a drug
tax stamp. Considering the evidence presented at Murray’s trial, there is
substantial evidence to show she had actual possession of crack cocaine with
intent to deliver. Murray has not shown she received ineffective assistance due
to counsel’s failure to request an instruction giving the definition of possession.
We affirm her convictions.
I. Background Facts & Proceedings.
In the early morning of April 19, 2013, detectives with the Scott County
Special Operations Unit had a confidential informant purchase crack cocaine
from Karen Cathey at a motel with $100 in marked money. While the motel was
under surveillance due to the controlled purchase, Cathey left the motel in a red
car with Michigan license plates that was driven by another person. 1 Cathey was
arrested when she returned to the motel, and her cell phone was seized. One of
the contacts in Cathey’s cell phone was listed as “Diamond.”
Based on an interview with Cathey, the detectives obtained a search
warrant for a residence in Davenport. The red car with Michigan license plates
was parked outside the residence, and documents with the name of Kristin
Murray were found in the vehicle. When officers entered the residence, Murray
and a male, Lashawn Thurman, came downstairs dressed only in
undergarments. In a bedroom upstairs officers found a pair of men’s jeans on
1 The officers did not follow the vehicle because they were worried about the safety of the confidential informant, who had not exited the motel within the expected timeframe. 3
one side of a bed and a pair of women’s jeans on the other side of the bed. In
the pocket of the women’s jeans was 3.71 grams of crack cocaine.2 Next to the
pair of women’s jeans was a cell phone in a case with a diamond design on it.
Murray admitted this cell phone belonged to her. When officers called the
number associated with “Diamond” from Cathey’s cell phone, Murray’s cell phone
rang. Officers also found a purse in the residence containing documents
addressed to Murray. The purse contained $210 in cash, including some of the
marked money from the controlled drug purchase earlier that night. A digital
scale was also found in the residence.
A jury found Murray guilty of possession with intent to deliver a controlled
substance (crack cocaine), conspiracy to commit a non-forcible felony, and
failure to affix a drug tax stamp. The court denied Murray’s motions for judgment
of acquittal and for new trial. It determined Murray’s convictions for possession
with intent to deliver and conspiracy should be merged for purposes of
sentencing. Murray was sentenced to a term of imprisonment not to exceed
twenty-five years and five years on her respective convictions, to be served
concurrently. Murray now appeals her convictions.
II. Sufficiency of the Evidence.
Murray contends there is insufficient evidence in the record to show she
possessed crack cocaine with the intent to deliver. She asserts there is
insufficient evidence to show the women’s jeans that had crack cocaine in the
pocket belonged to her. Murray told officers she wore a size 14 and the jeans
were a size 11. She states the officers refused to allow her to try on the jeans in
2 The men’s jeans had 16.78 grams of crack cocaine in a pocket. 4
order to show they were too small for her. Murray points out the house was
rented by Tiana Johnson, the red car was rented by Olivia Oliver, and she had
been given a ride to the house by Stacy. Murray claims the jeans could have
belonged to any of these women.
We review claims challenging the sufficiency of the evidence in a criminal
case for the correction of errors at law. State v. Dalton, 674 N.W.2d 111, 116
(Iowa 2004). We will uphold the jury’s verdict when it is supported by substantial
evidence. State v. Hagedorn, 679 N.W.2d 666, 668 (Iowa 2004). “Evidence is
substantial if it would convince a rational fact finder that the defendant is guilty
beyond a reasonable doubt.” State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005).
We view the evidence in the light most favorable to the State, “including
legitimate inferences and presumptions that may fairly be deduced from the
record evidence.” State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005).
In order to establish possession of a controlled substance, the State must
prove a defendant “exercised dominion and control over the contraband, had
knowledge of the contraband’s presence, and had knowledge the material was a
narcotic.” State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014). This may be
established through actual possession or constructive possession. Id.
We will first address the theory of actual possession. The State may
prove actual possession through direct or circumstantial evidence. Id. A
defendant has actual possession of a controlled substance when it is found on
his or her person or there is substantial evidence the controlled substance was
on his or her person at some point in time. Id.; see also State v. Vance, 790
N.W.2d 775, 784 (Iowa 2010) (“Although the pseudoephedrine was not found on 5
Vance’s person at the time of the stop, substantial evidence supports the jury’s
finding that at one time Vance had actual possession of the pseudoephedrine
with the intent to manufacture methamphetamine.”).
We determine there is substantial evidence in the record to show Murray
had actual possession of the crack cocaine. When officers entered the
residence, there were only two people present—Murray and Thurman. There
was only one bedroom in the home that had furniture, including a mattress.
Murray and Thurman came downstairs wearing only undergarments. The jury
could infer that Murray and Thurman each took off their jeans and laid down on
the mattress to go to sleep, then came downstairs when the officers arrived to
execute the search warrant around 7:00 a.m., leaving their jeans on the floor
beside the bed. Additionally, Murray told officers the cell phone found on the
floor next to the women’s jeans belonged to her. When Cathey’s contact,
“Diamond,” was called, Murray’s cell phone rang.
Furthermore, Murray’s purse contained marked money from the controlled
purchase by the confidential informant, linking her to the sale of crack cocaine. A
digital scale, an item often used by drug dealers to weigh illegal drugs, was found
in the residence. Moreover, Cathey, a drug dealer, was picked up from the motel
by a red car with Michigan license plates. When officers searched the vehicle,
they found documents addressed to Murray in the car.
We conclude all of this evidence, taken together, provides substantial
evidence to show Murray had actual possession of the crack cocaine found in the
pocket of the women’s jeans. Because there is substantial evidence to show
Murray had actual possession of the crack cocaine, we will not analyze the 6
evidence under a theory of constructive possession. We determine the district
court did not err in denying Murray’s motion for judgment of acquittal.
III. Ineffective Assistance.
Murray claims she received ineffective assistance because her defense
counsel did not request a jury instruction defining possession. She asserts that if
the jury had received an instruction listing the elements of constructive
possession, the jury would not have found her guilty of possession of a controlled
substance with intent to deliver.
We review claims of ineffective assistance of counsel de novo. Ennenga
v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of ineffective
assistance of counsel, an applicant must show (1) the attorney failed to perform
an essential duty and (2) prejudice resulted to the extent it denied the applicant a
fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). An applicant has
the burden to show by a preponderance of the evidence counsel was ineffective.
See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).
We determine Murray has not shown she was prejudiced by counsel’s
failure to request an instruction giving the legal definition for possession. The
evidence shows she had actual possession of the crack cocaine, and we do not
believe the jury would have reached a different verdict if an instruction more
specifically setting out the elements of constructive possession had been given.
We conclude Murray has failed to show she received ineffective assistance of
counsel.
We affirm Murray’s convictions.