IN THE COURT OF APPEALS OF IOWA
No. 19-0573 Filed May 13, 2020
STATE OF IOWA, Plaintiff-Appellee,
vs.
LARRY LAVELL WIGGINS, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark R. Lawson,
Judge.
A defendant appeals his convictions and sentence for possessing controlled
substances with intent to deliver and failure to affix a tax stamp. CONVICTIONS
AFFIRMED, SENTENCES AFFIRMED IN PART AND VACATED IN PART, AND
CASE REMANDED FOR RESENTENCING.
Martha J. Lucey, State Appellate Defender, and Melinda J. Nye and
Stephan J. Japuntich, Assistant Appellate Defenders, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Mullins and Schumacher, JJ. 2
TABOR, Presiding Judge.
A jury found Larry Wiggins guilty of four drug-related charges. He appeals
those convictions, alleging the State did not present substantial evidence to
support the verdicts. Viewing the evidence in the light most favorable to the State,
we affirm the verdicts. Wiggins also contends his trial attorney was ineffective for
not objecting to testimony from the State’s expert witness. Reviewing those claims
de novo, we find Wiggins did not show counsel’s performance was subpar or
resulted in prejudice. Finally, Wiggins challenges aspects of the sentencing order.
Because the restitution determination did not comply with State v. Albright, 925
N.W.2d 144 (Iowa 2019), we vacate the sentencing order in part and remand for
the district court to calculate Wiggins’s reasonable ability to pay court-appointed
attorney fees and court costs.
I. Facts and Prior Proceedings
The “call for service” on a gold Nissan Altima came through the Davenport
police radio in the dead of the night. Patrol Officer Joel Griffin turned on both his
emergency lights and siren before heading in the direction of the call. About a
minute later, Officer Griffin saw the Altima make a left turn at the corner of
Welcome Way and Kimberly Avenue. The chase began.
Siren blasting, Officer Griffin caught up with the Altima. The Altima’s driver
signaled and pulled over, perhaps believing the patrol car would drive by. But
instead, Officer Griffin pulled behind the Altima to conduct a traffic stop. Officer
Griffin later testified he had about fifteen seconds to notice “at least two occupants”
in the front seat before the Altima sped away. The Altima’s driver ran red lights 3
and sped by other cars. Soon Officer Robert Farra joined the pursuit, positioning
himself directly behind the Altima.
The chase ended when the Altima stopped in an alley between Brown and
Warren Streets. While the car was still moving, two occupants—one female and
one male—jumped out and darted in opposite directions. The woman emerged
from the driver’s door and the man from the front passenger’s seat. The Altima
kept rolling until it hit a tree in the wooded area at the end of that alley. The video
recording from Officer Farra’s dash camera showed him running after the
passenger. After a short foot-chase, Officer Farra apprehended the runaway
passenger, Larry Wiggins.
Police searched the Altima and the surrounding area. Officer Farra found
a bag of marijuana, a “Hello Kitty” key chain, and a lighter on the ground where
Wiggins had jumped from the car. Police also retraced Wiggins’s path during the
foot-chase and found a plastic baggie containing 0.14 grams of cocaine base.
Under the Altima’s front passenger seat, officers found another plastic baggie
containing four to five pills.1 Under that same seat, they also found a green leafy
substance and a second bag of marijuana laying on top of a digital scale. Police
found a third bag of marijuana resting on the front passenger seat. Last, on the
floor of the front passenger side, police found a fourth baggie of marijuana. The
four baggies of marijuana weighed—7.9 grams; 27.7 grams; 27.8 grams; and 7.6
grams—respectively.
1 The police initially thought the five pills were MDMA (ecstasy), but the lab later identified them as methamphetamine. 4
Plus, police found a loose green leafy substance, which also appeared to
be marijuana, in the cup holder of the Altima’s center console. Also from that
center console, police recovered two documents: one bearing Wiggins’s name and
the other bearing the name of Darrell Allen Williams.2 Lastly, the officers found an
identification card belonging to D’Asia Ruplinger, the likely driver of the Altima.
The State filed a trial information charging Wiggins with possession with
intent to deliver MDMA (Count I), possession with intent to deliver marijuana
(Count II), failure to affix a drug tax stamp (Count III), and possession of crack
cocaine (Count IV). Before trial, the State amended Count I to charge possession
with intent to deliver methamphetamine.
At trial, the State offered expert testimony from Davenport Police Lieutenant
Kevin Smull. In discussing the State’s proof of intent to deliver, Smull pointed out
“there’s no paraphernalia . . . there’s nothing there to show that it was for user
amount from an ingestion point.” In addition, Smull testified:
The marijuana, you know, it’s over 42.5 grams, so it qualifies for the drug stamp. And the way it’s presented in its packaging, you have two ounce quantities and you have two quarter-ounce quantities. That would be for more distribution than it would be for personal use. It makes no sense to me to have marijuana in four separate packages for personal use. You would buy it in one package.
After hearing the evidence, the jury found Wiggins guilty on all four counts.
The district court sentenced him to concurrent terms of imprisonment not to exceed
ten years. The court suspended the fines. In addition, the court ordered Wiggins
to pay a law enforcement initiative (LEI) surcharge of $125 on each count. See
Iowa Code § 911.3 (2018). The court also ordered the ten-dollar drug abuse
2 Williams was D’Asia Ruplinger’s brother. 5
resistance education (DARE) surcharge on the three drug-possession counts. See
Iowa Code § 911.2. The court ordered Wiggins to repay court-appointed attorney
fees in an amount not to exceed $3300. But the court found he was not reasonably
able to pay jail fees.
II. Scope and Standards of Review
On the sufficiency claims, we review for correction of errors at law. State v.
Ramirez, 895 N.W.2d 884, 890 (Iowa 2017). We will uphold the jury verdicts if
substantial evidence supports them. Id. We consider evidence to be substantial
if, when viewed in the light most favorable to the State, it can convince a rational
jury that the defendant is guilty beyond a reasonable doubt. State v. Sanford, 814
N.W.2d 611, 615 (Iowa 2012). Inherent in this standard of review is the recognition
that the jurors may reject or credit evidence as they see fit. Id.
We also review restitution orders for correction of errors at law. Albright,
925 N.W.2d at 158. “[W]e determine whether the court’s findings lack substantial
evidentiary support, or whether the court has not properly applied the law.” Id.
(quoting State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001)).
For Wiggins’s claim of ineffective assistance, we apply a de novo review.
State v. Query, 594 N.W.2d 438, 444 (Iowa Ct. App. 1999). We also review his
equal protection challenge de novo. See State v. Wade, 757 N.W.2d 618, 622
(Iowa 2008) (noting “statutes are cloaked with a presumption of constitutionality”
and “challenger bears a heavy burden” to prove unconstitutionality). 6
III. Analysis
A. Sufficiency of the evidence.
Wiggins challenges two aspects of the State’s case against him. First, he
argues the State failed to prove he had constructive possession of the controlled
substances.3 Second, he argues if the State did prove he possessed the
marijuana, it did not offer sufficient evidence that he failed to affix a label on the
marijuana packaging to show payment of state taxes on that substance. We will
address each challenge in turn.
1. Constructive possession
Let’s start with constructive possession. To prove constructive possession,
the State had the burden to show Wiggins knew the controlled substances were
present in and around the Altima and had the authority or right to exercise control
over them. See State v. Kern, 831 N.W.2d 149, 161 (Iowa 2013). The State may
prove constructive possession by inferences. See State v. Reed, 875 N.W.2d 693,
705 (Iowa 2016).
Because Wiggins was not the only person in the place where the officers
found the drugs, we consider several factors when deciding if he had constructive
possession of them. These factors include: (1) any incriminating statements by
Wiggins; (2) any incriminating actions upon police discovery of the drugs among
his belongings; (3) any fingerprints on the packaging; and (4) any other
3 The State can prove possession as either actual or constructive. State v. Kemp, 688 N.W.2d 785, 789 (Iowa 2004). A defendant has actual possession if an item is on their person. Id. A defendant has constructive possession if they knew about the item’s presence and have authority or right to maintain control over it. Id. Because police found no drugs on Wiggins’s person, this matter concerns constructive possession. See id. 7
circumstances linking him to the drugs. See State v. Webb, 648 N.W.2d 72, 79
(Iowa 2002). Further, because police found drugs in a vehicle, we may consider
these additional questions: (1) were the drugs in plain view; (2) were they with
Wiggins’s personal effects; (3) were they on his side of the car or next to him;
(4) did he own the vehicle; and (5) did he act suspiciously. See State v. Dewitt,
811 N.W.2d 460, 475 (Iowa 2012).
Wiggins argues his “mere proximity” to the controlled substances recovered
at the scene “is not enough” to sustain his convictions. He emphasizes he did not
own the Altima where police found most of the drugs. And the documents found
in the console shows he did not have exclusive control of the car.
Granted, Wiggins and the driver had joint access to the interior of the Altima.
See id. at 474–75 (discussing modern role of vehicles as shared
accommodations). Wiggins also made no incriminating statements to police. Nor
did police ask lab technicians to do fingerprinting on the baggies found.
But other circumstances did link Wiggins to the drugs. For example, the
State produced strong evidence that Wiggins acted suspiciously. Wiggins bailed
out of the car even before it stopped. He then ran from police. An officer had to
chase him on foot before taking him into custody. After the chase, police found
incriminating items, including a baggie of crack cocaine, strewn on the path of his
retreat. See State v. Thomas, 847 N.W.2d 438, 444 (Iowa 2014) (finding
constructive possession when defendant’s actions were “explainable most
logically as an effort to get the drugs off his person”). Back at the Altima, police
found marijuana in plain view. See State v. McMullen, 940 N.W.2d 456, 462 (Iowa
Ct. App. 2019) (noting constructive possession could be supported by presence of 8
marijuana in car’s center console). Officers also found methamphetamine and a
digital scale under the passenger seat where Wiggins had been sitting.
We are satisfied this evidence was sufficient for the jury to reasonably infer
that Wiggins knew the drugs were present and exercised control and dominion
over them. See Kemp, 688 N.W.2d at 790.
2. Proof of Tax Stamp Violation
Wiggins next contends the State did not prove he violated the tax stamp
provision at Iowa Code section 453B.12. To convict Wiggins of that offense, the
jury had to find the State offered proof beyond a reasonable of three elements:
(1) he knowingly possessed marijuana; (2) which weighed forty-two and one-half
grams or more; and (3) “did not have permanently affixed to it a stamp, label, or
other official indication of payment of the state tax imposed on the substance.” See
State v. White, 545 N.W.2d 552, 555 (Iowa 1996) (listing elements of offense).
Wiggins contests the State’s proof of the third element. He contends
testimony from Lieutenant Smull that he saw no tax stamps when he reviewed
photographs of the seized drugs fell short of proof beyond a reasonable doubt.
Wiggins underscores that Smull did not play a role in the original investigation of
the case.
The State counters that the photographs of the marijuana packages offered
into evidence were sufficient to prove the tax stamp violation. Plus, in the State’s
view, the jury could rely on Smull’s observations. In addition, at trial, the prosecutor
resisted the motion for judgment of acquittal, arguing:
The bags are in evidence; they don’t have a stamp. That’s clear. The jury can see that. It doesn’t need to be said out loud, necessarily, but it was said out loud. He did say he reviewed the 9
evidence in this case. Lieutenant Smull did testify that he was familiar with what the tax stamp looked like and that it was not present; therefore, there was none affixed.
We find substantial evidence to support Wiggins’s tax stamp conviction.
The jury could assign the appropriate weight to Smull’s testimony, which was
corroborated by photographic exhibits and the baggies of marijuana collected by
the officers and admitted into evidence at trial. See State v. Rivera, 614 N.W.2d
581, 584 (Iowa Ct. App. 2000) (finding testimony about weight of
methamphetamine mixture was corroborated by photograph of jar which clearly
portrayed amount of liquid it contained).
Because the State offered substantial evidence to support Wiggins’s
convictions, we decline to disturb the jury’s verdicts.
B. Ineffective Assistance of Counsel
Wiggins next argues he did not receive effective assistance of counsel.4 He
contends his trial attorney breached a material duty by failing to object when
Lieutenant Smull gave expert testimony for the State. More specifically, Wiggins
argues counsel should have objected when Lieutenant Smull testified “there was
no reason to even investigate” Williams—the driver’s brother—because police
found the drugs where Wiggins had been sitting in the Altima. In Wiggins’s
estimation, the expert impermissibly commented on his guilt by suggesting the
4 The Iowa Code no longer permits appellate courts to decide claims of ineffective assistance on direct appeal. See 2019 Iowa Acts ch. 140, § 31 (codified at Iowa Code § 814.7 (2020)). But that provision does not apply to a judgment entered before July 1, 2019. See State v. Macke, 933 N.W.2d 226, 228 (Iowa 2019). Because the judgment here was entered in March 2019, we are not foreclosed from considering Wiggins’s claim of ineffective assistance. See State v. Kuhse, 937 N.W.2d 622, 627 (Iowa 2020). 10
police did not need to pursue an alternative suspect. See State v. Myers, 382
N.W.2d 91, 97 (Iowa 1986) (“A witness is not permitted to express an opinion as
to the ultimate fact of the accused’s guilt or innocence.”).
In a similar vein, Wiggins insists his attorney should have objected to
Smull’s testimony about the packaging of the drugs: “The marijuana is, I have no
doubt in my mind, based on my training and experience and what I’ve seen over
the years was for distribution, just the way the presentation of it, in each individual
bag.” The prosecutor highlighted that expert testimony in closing arguments.
In a second ineffective-assistance claim, Wiggins alleges his attorney was
remiss in not objecting to a lack of foundation for Smull’s tax-stamp testimony.
To support his claims of ineffective assistance, Wiggins must show
(1) counsel failed to perform an essential duty and (2) prejudice resulted. See
Strickland v. Washington, 466 U.S. 668, 687–88 (1984). To satisfy the breach-of-
duty prong, Wiggins “must show that counsel’s performance was deficient,”
meaning the errors were so serious that the attorney stopped functioning as the
“counsel” guaranteed by the Sixth Amendment. See id. at 687. On the prejudice
prong, Wiggins must show “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” See
id. at 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. “Failure to prove either prong is fatal to an
ineffective-assistance-of-counsel claim.” State v. Lorenzo Baltazar, 935 N.W.2d
862, 868 (Iowa 2019). 11
1. Admissibility of Expert Opinion
To start, we address Wiggins’s complaint about inadmissible opinion
testimony. When thinking about counsel’s duty, we are mindful that Iowa courts
are committed to a liberal view on the admissibility of expert testimony. See Iowa
R. Evid. 5.702; State v. Tyler, 867 N.W.2d 136, 153 (Iowa 2015). We will not
interfere with the district court’s exercise of discretion in admitting an expert opinion
unless we see manifest abuse. See State v. Ogg, 243 N.W.2d 620, 621 (Iowa
1976). But we do not allow a witness to express “an outright opinion” on the
defendant’s guilt. Id.
In the first passage Wiggins highlights from Lieutenant Smull’s testimony,
the expert suggested police didn’t need to investigate another suspect because
they found the drugs in the passenger seat that Wiggins had occupied. We agree
that opinion crossed the “fine” but distinct line between permissible and
impermissible expert testimony. See State v. Vesey, 482 N.W.2d 165, 167 (Iowa
Ct. App. 1991). The prosecutor asked Smull about carrying drugs for personal use
without “having any devices to use those drugs in the car.” Smull’s response went
beyond a general discussion of the indicia of personal use versus drug dealing.
By saying police needed to look no further than Wiggins, Smull commented on his
guilt. Defense counsel could have lodged a successful objection to that remark.
But “counsel need not take advantage of every opportunity to object in order
to satisfy the standard of normal competency.” State v. Carberry, 501 N.W.2d 473,
477 (Iowa 1993). Instead of objecting, Wiggins’s counsel made a strategic
decision to cross examine Smull on the ambiguity in determining who is in
possession of the drugs when there’s more than one person in a vehicle. 12
“Imprudent trial strategy, miscalculated tactics or mistakes in judgment do not
necessarily amount to ineffective counsel.” Vesey, 482 N.W.2d at 168. Wiggins
has not shown he was prejudiced by counsel’s strategy. See id. Even if counsel
had objected, given the State’s strong evidence of constructive possession, no
reasonable probability existed that Wiggins would have been acquitted without that
expert opinion.
The second passage from Smull’s testimony—discussing how the
difference in drug packaging distinguishes between users and dealers—was not
objectionable. An expert witness may testify to “the customs and practices of those
who use or deal in narcotics.” Id. at 167. That expert may also address whether
the actions of the accused fit with the “well-defined modus operandi” of the offense.
Id. Lieutenant Smull did not testify that Wiggins possessed the requisite intent to
deliver those drugs. He merely expressed his opinion that the manner of
packaging was consistent with how drugs are parceled by dealers. Counsel had
no duty to make a meritless objection. See State v. Shumpert, 554 N.W.2d 250,
254 (Iowa 1996).
2. Foundation for Tax-Stamp Testimony
We next turn to Wiggins’s claim that counsel was ineffective in failing to
object to Lieutenant Smull’s assertion that the narcotics were bereft of tax stamps.
According to Wiggins, Smull lacked adequate personal knowledge to testify to the
absence of the tax stamps as he was not part of the investigation.
Wiggins claims counsel should have objected under Iowa Rule of Evidence
5.901(a) (requiring proponents of evidence to authenticate that the item offered is
what they claim it is). Yet he admits the question raised is “slightly different” 13
because he is concerned with Smull’s observations of what was missing, not what
was present.
The State contends counsel had no duty to object on foundation grounds.
We agree. Lieutenant Smull testified that he reviewed the supplemental police
reports, the physical evidence, the photographic evidence, and the lab reports.
From that review, he discerned that the marijuana packages had no stamp
attached to show state taxes had been paid. His testimony was admissible without
additional foundation. Further, Wiggins fails to show he was prejudiced by Smull’s
testimony about the absence of tax stamps. The jury was able to see firsthand
from the drugs admitted as evidence and from the crime scene photographs that
Wiggins had not affixed tax stamps.
Wiggins did not prove he received ineffective assistance in regard to any
part of Lieutenant Smull’s testimony.
C. Sentencing Issues
In the last issue of his brief, Wiggins argues the sentencing court mistakenly
ordered him to pay court costs, attorney fees, the DARE surcharge, and the LEI
surcharge. He challenges the restitution order under the reasonable-ability-to-pay
analysis in Albright, 925 N.W.2d at 158. He also contends the LEI surcharge
violates his equal protection rights. We will address those two claims in turn.
1. Restitution
In the sentencing process, the district court must order restitution “to the
clerk of court for fines, penalties, [and] surcharges” without regard to an offender’s
reasonable ability to pay. Iowa Code § 910.2(1) (2018); Albright, 925 N.W.2d at
161. As to court costs and court-appointed attorney fees, the court can only award 14
restitution “to the extent the offender has the reasonable ability to pay.” 5 Albright,
925 N.W.2d at 159.
Here, the court decided Wiggins did not have the reasonable ability to pay
jail fees but did have the reasonable ability to pay up to $3300 in attorney fees, as
well as court costs. Because the district court did not have the total calculation of
the restitution available when making its reasonable-ability-to-pay determination,
we vacate that part of the sentence and remand for resentencing consistent with
Albright. See State v. Covel, 925 N.W.2d 183, 189 (Iowa 2019). The State agrees
with this course of action.
2. LEI Surcharge
Last, Wiggins argues the imposition of the LEI surcharge violated his equal
protection rights as guaranteed by both state and federal constitutions. See U.S.
Const. amend. XIV; Iowa Const. art. I, § 6; Nguyen v. State, 878 N.W.2d 744, 757
(Iowa 2016). “[T]he equal protection guarantee requires that laws treat all those
who are similarly situated with respect to the purposes of the law alike.” Varnum
v. Brien, 763 N.W.2d 862, 883 (Iowa 2009); accord Nguyen, 878 N.W.2d at 757.
Iowa Code section 911.3 mandates the imposition of a $125 surcharge
following judgment of conviction for certain offenses.6 Wiggins asserts “he is
5 Wiggins argues the DARE surcharge should be subject to the reasonable-ability- to-pay determination because it is a “contribution to a local anticrime organization” under 910.1(2). We disagree. See State v. Tillman, No. 18-1956, 2020 WL 376551, at *4 (Iowa App. Jan. 23, 2020) (holding LEI and DARE surcharges were not subject to a determination of the offender’s reasonable ability to pay); State v. Thompson, No. 19-0230, 2020 WL 110397, at *1 (Iowa App. Jan. 9, 2020) (rejecting argument that DARE surcharge was equivalent to contribution to local anticrime organization). 6 They include controlled-substance offenses under chapter 124; pharmacy-
related offenses under chapter 155A; excise-tax violations under chapter 453B; 15
similarly situated with other criminal defendants who are treated differently by
virtue of the fact that they are not assessed the LEI surcharge.” From there, he
submits there is no rational basis for imposing the LEI surcharge on some
defendants while exempting others. We disagree.
Wiggins cannot show he is similarly situated with offenders who have
violated statutes not listed in section 911.3(1). Crimes fall into different categories
based on their respective elements. “[T]he legislature is free to impose disparate
punishments for different crimes so long as the offenses are distinguishable on
their elements.” State v. Ceaser, 585 N.W.2d 192, 196 (Iowa 1998), overruled on
other grounds by State v. Bruegger, 773 N.W.2d 862, 870–72 (Iowa 2009). “In
other words, if the elements of the offenses are not the same, persons committing
the crimes are not similarly situated and, therefore, may be treated differently”
without violating the equal protection clause. Id. We find no merit in Wiggins’s
challenge to the constitutionality of section 911.3(1). See Thompson, 2020 WL
110397, at *2.
CONVICTIONS AFFIRMED, SENTENCES AFFIRMED IN PART AND
VACATED IN PART, AND CASE REMANDED FOR RESENTENCING.
burglary offenses under chapter 713; theft, fraud, and related offenses under chapter 714; forgery and related crimes under chapter 715A; damage and trespass to property under chapter 716; possessing contraband under section 719.7; furnishing a controlled substance or intoxicating beverage to an inmate under section 719.8; and prostitution, pimping, and pandering, in violation of sections 725.1 through 725.3.