IN THE SUPREME COURT OF IOWA

No. 13–0988

Filed February 26, 2016

Amended May 5, 2016

STATE OF IOWA,

Appellee,

vs.

DONALD BENJAMIN EARL REED,

Appellant.

On review from the Iowa Court of Appeals. 

Appeal from the Iowa District Court for Black Hawk County, 

Todd A. Geer, Judge. 

Defendant seeks further review of a court of appeals decision 

affirming his convictions and 100-year prison sentence. COURT OF 

APPEALS DECISION AFFIRMED IN PART AND VACATED IN PART; 

DISTRICT COURT JUDGMENT AFFIRMED IN PART AND REVERSED 

IN PART; CASE REMANDED FOR RESENTENCING. 

Mark C. Smith, State Appellate Defender, and Patricia Reynolds, 

Assistant Appellate Defender, for appellant. 

Thomas J. Miller, Attorney General, Linda J. Hines, Assistant 

Attorney General, Thomas J. Ferguson, County Attorney, and Brad Walz, 

Assistant County Attorney, for appellee. 
2

WATERMAN, Justice.

In this appeal, we review a twenty-seven-year-old defendant’s 

challenges to his sentence of up to 100 years for drug dealing, child 

endangerment, and possession of firearms. The jury found the 

defendant guilty on those offenses, which he committed as an adult. The 

firearm conviction automatically doubled the sentence for his cocaine 

offense from twenty-five to fifty years. The district court had discretion 

to sentence him to as little as fifty years with immediate parole eligibility, 

or up to 150 years based on another enhancement for his prior felony 

drug conviction at age seventeen. The sentencing court chose to double 

but not triple the fifty-year sentence and require him to serve one-third of 

the sentence before becoming eligible for parole. This meant he could be 

on parole as early as age forty-three with earned-time credit. 

The defendant argues the evidence was insufficient to prove his 

constructive possession of the drugs and firearms, his trial counsel was 

ineffective, and his sentence is cruel and unusual punishment violating 

the Iowa Constitution because it is based on a prior conviction for an 

offense he committed as a minor. The court of appeals affirmed his 

convictions and sentence, and we granted his application for further 

review. 

For the reasons elaborated below, we hold the evidence was 

insufficient to prove his constructive possession of firearms, requiring 

resentencing without the firearm conviction and enhancement. We 

affirm his remaining convictions. We leave intact the court of appeals 

decision rejecting his ineffective-assistance-of-counsel claims. Because 

defendant will be resentenced, we do not reach his constitutional 

challenge to his original sentence. Thus, we affirm in part and vacate in 
3

part the court of appeals decision, reverse defendant’s convictions for 

possession of firearms, and remand the case for resentencing. 

I. Background Facts and Proceedings.

In March 2012, Waterloo police officers Michael Girsch and 

Edward Savage began conducting surveillance of a house to find an 

individual who was suspected of trafficking drugs from Chicago. The 

house, located at 1320 Randolph Street, is a single-family home with a 

detached garage. The house is owned by Chad Wolf, and the utilities are 

in Wolf’s name. The police suspected drugs were sold from this location. 

During surveillance spanning three weeks, cars frequently pulled up in 

the adjacent alley, and people went into the house for brief visits. The 

officers never saw the original target of their investigation there and soon 

focused their investigation on Donald Reed. 

The officers frequently observed Reed at the Randolph Street home. 

His girlfriend, Alicia Buchanan, rented the house and lived there with her 

two daughters, A.R., age two, and A.B., age four. Reed is the father of 

A.R. The officers observed Buchanan playing outside with her children 

and taking out the garbage. Reed always arrived in a white Buick and 

parked in the driveway. He entered the house without knocking or 

ringing the doorbell, and his observed visits lasted for hours. Reed was 

also seen taking out the garbage. 

On April 5, Officer Savage conducted a “trash rip” at the house by 

retrieving garbage bags left curbside and searching the contents. He 

found several small plastic bags with ripped corners consistent with drug 

packaging, dryer sheets,1 an envelope, a Rent-A-Center application, and 

1Officer Savage testified that dryer sheets and fabric softener are used in drug 

packaging to mask the scent of certain narcotics. 

 
4

a Rent-A-Center bill in the trash. The envelope, postmarked 

February 15, was addressed to Buchanan at a different address. The 

Rent-A-Center application stated that Buchanan and Reed owned 1320 

Randolph Street subject to a mortgage. The application listed Reed as 

Buchanan’s husband in one section and father in another. Reed’s 

address was listed as 5481⁄2 Riehl Street in Waterloo, another house 

where he was observed. The rental application was completed in one 

person’s handwriting and signed by Buchanan alone. The Rent-A-Center 

bill was addressed to Buchanan and Reed at 1320 Randolph Street. 

On April 11, Officer Girsch arrived at the house around 9:30 p.m. 

and saw Reed’s Buick in the driveway. Buchanan stepped outside 

several times but never left the yard. Officer Girsch departed around 

midnight to get a search warrant and returned at 7:30 a.m. Reed’s 

Buick was still parked in the driveway. Officer Girsch saw Wolf go inside 

for fifteen minutes and leave. Reed left the house at 11:20 a.m. Officer 

Girsch coordinated with other officers to follow Reed and conduct a 

traffic stop. 

Officer Savage stopped Reed at 11:30 a.m. near Young Arena, an 

ice rink in downtown Waterloo. Reed gave Officer Savage his 

registration, but he did not have an ID. The Buick was registered in 

Reed’s name. The address on the registration was 5481⁄2 Riehl Street. 

Officer Savage searched Reed and found a cell phone and $523 in cash 

“bungled up” in Reed’s front pocket. Reed did not have a wallet, drugs, 

or a weapon. Officer Savage placed Reed under arrest and took him to 

the Waterloo police station. 

Within minutes of Reed’s traffic stop, Officers Girsch, Albert Bovy, 

and Steve Newell executed the search warrant at 1320 Randolph Street. 

Officers Bovy and Girsch went to the front door while Officer Newell went 
5

to the rear. Buchanan responded to Officer Girsch’s knock. Officer 

Girsch asked to come in, and Buchanan asked why. When he explained 

that he had a search warrant, Buchanan ran towards the kitchen. 

Officer Girsch kicked in the door. The officers found Buchanan in the 

hallway leading to the bedrooms and the girls hiding under a bed. 

Officer Bovy directed Buchanan and the girls to sit on the couch while 

the police searched the home. 

The house had three bedrooms, a kitchen, a living room, and an 

unfinished basement. One bedroom was furnished for adults, one was a 

children’s room with two small beds, and the third was empty. A 

pungent smell of burnt marijuana emanated from the kitchen. The 

officers saw white powder scattered on the table and countertops and a 

small plastic bag near the powder. Loose marijuana leaves were on the 

kitchen table. 

The officers found more drugs and two firearms in the adult 

bedroom. Against one wall was a built-in with open cabinets and a 

television. The left side of the built-in had floor-to-ceiling cabinets 

containing men’s and women’s clothing. When the officers began 

searching the clothing, they found a small plastic bag with twenty-seven 

grams of crack cocaine underneath a stack of clothes with a folded pair 

of large men’s pants on top. Reed weighed 210 pounds. As they 

searched, a bag of marijuana fell out of the clothing. The right side of 

the built-in had a large television with a cabinet on top. That cabinet 

contained an Xbox and a brown purse. When Officer Girsch searched 

the cabinet, he saw a pink lotion bottle and a gun barrel pointing out 

from behind the Xbox. The gun barrel was not visible from the center of 

the room. After photographing the Xbox, Officer Girsch moved it and 

found two guns—a Springfield .45 automatic 1911 and a Jennings 9 mm 
6

firearm. Both guns were loaded and were within four feet of the cocaine. 

Two partial fingerprints were found—one on each gun. Neither print 

matched Buchanan or Reed. Officer Girsch found a torn small plastic 

bag and two bottles of nail polish inside the purse. 

More items were found on top of a dresser across the room: a box 

of small plastic bags, small plastic bags with the corners torn off, a 

digital scale, white powder, a Wisconsin ID with white powder caked on 

one side, and a cell phone. The name on the ID was Ramon Brumfield. 

The top drawer of the dresser was open and contained cash, more small 

plastic bags and another pair of men’s jeans. 

In the children’s bedroom, Officer Girsch found a crumpled dollar 

bill and a marijuana roach on the mattress. In the children’s closet, 

there was a white nylon shoulder bag hanging from the door handle with 

loose marijuana inside it. The hallway closet contained more ripped 

small plastic bags. 

Reed was in a holding cell. Around 3:30 p.m., he asked for Officer 

Savage and suggested an interest in cooperating, stating: 

I need to talk to you, but I can’t do shit man. I got to make 

sure that my girl, she—I mean, we’ve got to do it together or 

something, because, I mean, we can help you out, dude. We 

got kids. The only thing, sir, me and my girl, we would help 

you. We would help you get—to get some because, you know 

what I saying, because I want her to look like I know mother 

f**kers. 

The State brought seven charges against Reed: possession of more 

than ten but less than fifty grams of cocaine base2 with intent to deliver 

while in possession or control of a firearm in violation of Iowa Code 

sections 124.401(1)(b)(3) and 124.401(1)(e) (2011); failure to affix a drug 

2Cocaine base is the scientific term for crack cocaine. 

 
7

stamp in violation of section 453B.12; possession of a firearm by a felon 

in violation of section 724.26; two charges of child endangerment in 

violation of sections 726.6(1)(a) and 726.6(7); possession of powder 

cocaine as a second offender in violation of section 124.401(5); and 

possession of marijuana as a second offender in violation of section 

124.401(5). The State made a plea offer of fifty years with no 

recommended mandatory minimum. Reed rejected the plea. 

Reed’s five-day jury trial began on April 23. The police officers 

testified regarding their surveillance of the house, the search, and Reed’s 

statements. Officer Girsch testified to his experience investigating drug 

crimes and explained the pattern of visitors to the house was consistent 

with drug dealing, as were the ripped small plastic bags found 

throughout the house. He noted that digital scales are used to package 

drugs by weight for distribution and that dealers chip off pieces from 

large rocks of cocaine, such as those found in the built-in, to sell for 

profit. 

Officer Girsch testified the cocaine found in the bedroom cabinet 

was enough for over 200 dosages. He explained the amount found in the 

house was consistent with drug distribution rather than personal use: 

Q. [W]hen you encounter people who use crack 

cocaine, about how much do you see people who just use 

crack cocaine use at a time? A. Anywhere from a tenth of a 

gram to a little bit above that. 

Q. And would that, in essence, be a couple of the 

pebbles that are in there? A. Yes. 

Q. Anyone—ever seen anyone use an ounce of crack 

cocaine before? A. No. 

Q. Is it possible to use an ounce of crack cocaine like 

that in a setting or in a course of a period of time without 

doing severe medical issues to yourself? A. No. 

Q. Is the quantity of crack cocaine that’s in there in 

State’s Exhibit L, without, not taking into account any 

scales, any other plastic bags, the quantity in and of itself 
8

located in State’s Exhibit L, is it consistent with sale and 

distribution or with personal use? A. Sale and distribution. 

Q. Why is that? A. Because of the large quantity, it’s 

not—you would never buy that much just to use it. I mean, 

this is a quantity that’s always purchased to rock out and 

sell, and just the fact that you couldn’t smoke that much 

crack. 

Q. Have you ever seen a crack addict or a crack user 

with that much? A. No. 

Q: And as far as the use of crack cocaine, is the 

person who’s a user of crack cocaine, do you know anyone 

who’s a user of crack cocaine that’s not an addict of crack 

cocaine? A. No. 

Q. From your training and experience, is the use of 

crack cocaine a fairly addictive—a fairly addictive drug to 

use? A. Very addictive. 

Q. From your training and experience, do people who 

use quantities of crack cocaine, do you see them deal in 

quantities of crack cocaine of that size? A. No. 

Q. Why is that? A. A lot of it’s because people get so 

addicted to the drug that they—if they have more than what 

they’re actually smoking, they just end up smoking it all up, 

and just because people addicted are spending money so 

much just to buying—or, fund their habit, they’re not going 

to possess that much. 

Officer Girsch testified that it was common to find large amounts of 

cash with a drug dealer, and the small amount in the house was 

unusual. Officer Savage, who had seized the $523 in cash from Reed, 

testified that amount was consistent with drug dealing and noted Reed 

lacked lawful employment. Officer Girsch was unaware of a Brumfield3—

the name on the Wisconsin ID in the bedroom—living in Waterloo, but he 

knew Reed was from Wisconsin. 

Officer Girsch testified why he looks for firearms when 

investigating drug crimes: 

Many times people who are selling narcotics are going to 

have firearms because they want to protect their stash, 

3Brumfield was not the original target of the investigation.

 
9

protect their money when they’ve got large quantities of 

money in the house. Also, the fear of drug rips, which is 

when people get information that another dealer may have 

just gotten a large shipment in or purchased a large quantity 

or re-upped, you know, they’ll wait, they’ll maybe do 

surveillance on the house themselves. Once that subject 

leaves the house, they’ll kick the door in, try and steal their 

drugs so that they can sell them. So that’s what we 

commonly refer to as a drug rip. But, yeah, protecting the 

stash and protecting the drugs. 

Officers Girsch and Nissen elaborated that drug rips are often violent but 

reported rarely to the police. Officer Nissen noted that a person dealing 

crack cocaine would keep it in a familiar place for safekeeping. 

The officers testified regarding evidence recovered from Reed’s cell 

phone. A photo found on the phone and taken on March 7 showed the 

television and the built-in with closed cabinets in the adult bedroom. 

Another photo taken on March 11 showed Reed with white powder on his 

chin, cheeks, and lips. Officer Girsch testified a cocaine user would not 

put the substance on his skin. Reed’s phone also had a photo of an 

assault rifle but no photos of the handguns found in the bedroom. 

Several text messages on Reed’s cell phone were consistent with drug 

dealing. For example, on March 8, 2012, Reed received a text, “here i 

cum.” On March 11, he had an unsent message “Am come to you ill call 

you he it crack Free my niggas.” That day, he received a message saying, 

“hit me when u cum back i cant find no ride.” On March 12, he received 

a text “cum get me.” Sixty-nine of Reed’s ninety incoming voice calls in 

the preceding three days were less than one minute long. Officer Savage 

explained that the number of short incoming and outgoing calls, like the 

short-term traffic at the house, was common for drug dealers. 

Reed did not testify, but his trial counsel cross-examined the 

officers, attempting to cast doubt on Reed’s connection to the Randolph 

Street house. Counsel emphasized that Wolf owned the house and all of 
10

the utilities were in Wolf’s name. Reed was also observed at 5481⁄2 Riehl 

Street, the other address listed on the Rent-A-Center application. Officer 

Girsch was not able to see inside the Randolph Street house during his 

surveillance because the blinds were drawn and blankets covered many 

of the windows. 

The jury instructions required the State to prove beyond a 

reasonable doubt that Reed had actual or constructive possession of the 

drugs and firearms.4 Instruction No. 27 defined “possession”:

4The marshaling instruction for “Possession of a Controlled Substance, Cocaine 

Base, With Intent to Deliver,” stated: 

The state must prove all of the following elements of Possession of 

a Controlled Substance, Cocaine Base, With Intent to Deliver: 

1. On or about the 12th day of April, 2012, the defendant 

knowingly possessed a controlled substance, cocaine base. 

2. The defendant knew that the substance he possessed was 

a controlled substance, cocaine base. 

3. The defendant possessed the cocaine base with the intent 

to deliver a controlled substance. 

If the state has proved all of these elements, the defendant is 

guilty of Possession of a Controlled Substance, Cocaine Base, With Intent 

to Deliver. If the state has proved only elements 1 and 2, but not 

element 3, the defendant is guilty of Possession of a Controlled 

Substance, Cocaine Base. If the state has failed to prove element 

number 1 or 2, the defendant is not guilty. 

The marshaling instruction for “Possession of a Controlled Substance, 

Marijuana,” stated: 

The state must prove both of the following elements of Possession 

of a Controlled Substance, Marijuana: 

1. On or about the 12th day of April, 2012, the defendant 

knowingly or intentionally possessed marijuana. 

2. The defendant knew that the substance he possessed was 

a controlled substance, marijuana. 

If the state has proven both of these elements, the defendant is 

guilty of Possession of a Controlled Substance. If the state has failed to 

prove either of the elements, the defendant is not guilty. 

 
11

The word “possession” includes actual as well as 

constructive possession, and also sole as well as joint 

possession. 

A person who has direct physical control of something 

on or around his person is in actual possession of it. 

A person who is not in actual possession, but who has 

knowledge of the presence of something and has the 

authority or right to maintain control of it either alone or 

together with someone else, is in constructive possession of 

it. 

If one person alone has possession of something, 

possession is sole. If two or more persons share possession, 

possession is joint. 

Instruction No. 30 addressed the element of “immediate possession of a 

firearm” for the enhancement: 

To have immediate possession of a firearm means to 

have actual possession of the firearm on or around one’s 

person. To have immediate control of a firearm means to 

have the firearm in close proximity so that the person can 

reach for it or claim dominion or control over it. In order to 

prove that the defendant had immediate possession or 

control of a firearm, the state must prove that the defendant 

had knowledge of its existence and its general location. 

Neither Reed nor the State objected to the jury instructions defining 

possession. 

The jury found Reed guilty on all charges. The jury answered 

interrogatories regarding the cocaine charge and firearm enhancement: 

The marshaling instruction for “Possession of a Firearm by a Felon” stated: 

The state must prove both of the following elements of Possession 

of a Firearm by a Felon: 

1. On or about the 12th day of April, 2012, the defendant 

knowingly had under his dominion and control or 

possession a firearm. 

2. The defendant was previously convicted of a felony. 

If the state has proven both of the elements, the defendant is 

guilty of Possession of a Firearm as a Felon. If the state has failed to 

prove either of the elements, the defendant is not guilty. 

_________________________
12

To the crime charged in Count I, we, the jury, find the 

defendant, DONALD BENJAMIN EARL REED: 

 X Guilty of Possession of a Controlled Substance, 

Cocaine Base, With Intent to Deliver. **

. . . . 

** If you find the defendant, DONALD BENJAMIN 

EARL REED, guilty of Possession of a Controlled 

Substance, Cocaine Base, With Intent to Deliver, you 

must answer the following interrogatories. 

(1) We, the jury, further find the defendant, DONALD 

BENJAMIN EARL REED, Possessed With the Intent to 

Deliver: 

 X More than 10 grams of a substance that 

contains cocaine base;

. . . . 

(2) We, the jury, further find the defendant, 

DONALD BENJAMIN EARL REED, Possessed With the Intent 

to Deliver: 

 X While in the immediate possession of a firearm. 

On May 3, Reed pled guilty to being a second offender. The 

department of corrections submitted a presentence investigation (PSI) 

report to the court on June 6. The PSI detailed Reed’s childhood and 

family life. Reed was born and raised in Milwaukee, Wisconsin. His 

mother was convicted of federal drug charges in 1999 and sentenced to 

twenty-five years in prison. Reed was placed in a group home. His 

father has an extensive criminal history in Wisconsin and Iowa. Reed 

reported his father has a history of alcohol abuse and crack cocaine 

abuse. Reed began living on his own at age thirteen. In 2008, he moved 

from Milwaukee to Waterloo to be near his father. 

The PSI documented Reed’s self-reported drug and alcohol abuse. 

Reed never claimed to be addicted to crack cocaine and denied using that 

drug: 

The defendant admits to a history of daily marijuana use. 

He wrote, “I use to use every day to take the pain away I 

wish I had a normal life like the other kids.” He also admits 

to a history of daily Ecstasy use in the 2000’s, with his last 
13

use being in 2008 or 2009. He denied the use of any other 

illicit drugs including cocaine, methamphetamine and heroin 

and denied any history of prescription drug use. 

The PSI noted Reed had a sporadic employment history and never held a 

job for over one year. He was unemployed at the time of his arrest. 

Police records noted Reed was a member of the Southside Gang and 

known to carry weapons, but Reed denied any gang involvement. Reed 

said he was supported financially by various girlfriends. 

The PSI listed Reed’s prior juvenile arrests and dispositions in 

Wisconsin: possession of marijuana, assault and battery, loitering, 

curfew violation, and take and drive vehicle without consent. These 

dispositions all occurred between ages fifteen and sixteen. Reed also had 

numerous adult convictions: driving while suspended (five convictions); 

retail theft; manufacture of cocaine with intent to deliver five grams or 

less; battery; third-degree burglary; assault causing bodily injury; and 

interference with official acts. Reed had been incarcerated over eight 

years for these convictions. 

The PSI report recommended a 150-year prison term for 

possession with intent to deliver more than ten grams of cocaine base 

while in possession or control of a firearm and being a second offender; a 

five-year prison term for the drug tax stamp violation; a five-year prison 

term for possession of a firearm by a felon; two-year prison terms for 

each child endangerment charge; a two-year prison term for possession 

of cocaine base, second offense; and a two-year prison term for 

possession of marijuana, second offense. The PSI report also 

recommended Reed participate in substance abuse treatment and mental 

health counseling; obtain an employable skill; and make regular 

payments towards fines, restitution, court costs, and court-appointed 

attorney fees. 
14

Reed was sentenced on June 7. The State recommended a 150-

year prison term with a fifty-year mandatory minimum. Reed’s attorney 

advocated for a sentence without a mandatory minimum to allow him a 

chance at parole and rehabilitation. 

Defendant’s convictions included possession of ten or more but 

less than fifty grams of cocaine base with intent to deliver in violation of 

Iowa Code section 124.401(1)(b)(3)—a class “B” felony that, pursuant to 

Iowa Code section 902.9(1)(b), carries a twenty-five-year indeterminate 

sentence. The jury found he committed that crime while in the 

immediate possession of a firearm in violation of section 124.401(1)(e), 

which provides the drug offender “shall be sentenced to two times the 

term otherwise imposed by law.” Reed admitted to being a subsequent 

drug offender based on his felony conviction at age seventeen. Under 

Iowa Code section 124.411(1), his prior conviction subjected him to an 

enhancement of up to three times the maximum sentence. This meant 

the indeterminate sentence could be between fifty and 150 years. Reed 

was also subject to Iowa Code section 124.413(1), which states,

A person sentenced pursuant to section 124.401, subsection 

1, paragraph “a” . . . [or] “e” . . . , shall not be eligible for 

parole until the person has served a minimum period of 

confinement of one-third of the maximum indeterminate 

sentence prescribed by law. 

However, the district court had discretion to “sentence the person to a 

term less than provided by [section 124.413] if mitigating circumstances 

exist.” Iowa Code § 901.10(1). Section 901.10(1) allows the district court 

to reduce or eliminate the mandatory minimum sentence but not the 

indeterminate sentence. See State v. Iowa Dist. Ct., 630 N.W.2d 778, 782 

(Iowa 2001). 
15

The Court sentenced Reed to 100 years in prison with a mandatory 

one-third minimum term: 

THE COURT: Mr. Reed, you know you’ve committed 

very serious crimes. 

THE DEFENDANT: Yes. 

THE COURT: And those serious crimes carry severe 

penalties because society recognizes the dangerous 

combination between repeat drug offenders, firearms, and 

dealing in large amounts of controlled substances, which are 

very dangerous to be distributed out in the community. The 

law also recognizes the importance of making sure we 

protect children from being involved in dangerous activities. 

And you bring with you into this courtroom a criminal 

history. You’ve had lots of opportunity over the years to 

figure out, what it—what, it sounds like anyway, you’re 

starting to figure out, that you don’t want to live your life 

this way. But you have been. And we’ve had lots of good 

people spend a lot of time with you over the years trying to 

get you to figure that out. You’ve had a taste of prison in the 

past trying to get you to figure that out. It wasn’t as long as 

the one you’re going to be facing as a result of these most 

recent charges, but many times it takes someone to have 

their liberty, which most of us value a great deal, have our 

liberty taken away to truly understand what it means to live 

in a free society. And your society isn’t going to be free for a 

while. But it’s my hope that in fashioning this sentence, 

when you do earn parole, you are going to come out someone 

who is—who is ready to change his life, who has absolutely 

no interest in going back to the type of lifestyle and the 

dangerous criminal activities that bring you here today. 

You’re going to be older so perhaps you’re just going to be 

tired of it. You’re going to have your liberty deprived for an 

extended period of time so perhaps you will value and 

appreciate your liberty more when you get out and that will 

be enough to convince you that you’re not going to engage in 

these types of behaviors again. You’re a young person, at 

least in my book. You’re 28; is that right? 

THE DEFENDANT: Yes. 

THE COURT: Twenty-eight years old. But you’re not 

so young that you shouldn’t have figured out by now that 

this isn’t—this isn’t the type of life you want to live. 

And yes, I know, I read through the presentence 

investigation and report, I read the letter that your sister 

wrote on your behalf, I know that you’ve had a tough life. 

And I know that you haven’t had people, that are real close 

to you anyway, give you much guidance. But our criminal 
16

justice system has, for the last decade or so, had people who 

aren’t—you don’t love them, you probably don’t care much 

for them, but it’s their job to try to help you figure it out and 

you haven’t yet. And so that the sentence that I’m going to 

impose here I hope will give you time and incentive to get 

that figured—figured out. 

The law prescribes a sentence, 150-year sentence. 

You deserve that sentence because of the history you bring 

in with you and because of the very serious crimes you’ve 

committed. I do have some discretion, however. Even 

though the law prescribes a 150-year sentence, I’m not going 

to triple the sentence; I’m going to double the sentence. I’m 

going to double it because it’s appropriate because of your 

being in the immediate possession of a firearm and the fact 

that you are a repeat offender. But, also, by only doubling it 

rather than tripling it and still applying the one-third 

minimum sentence, you’re going to be young enough by the 

time you earn parole, assuming that you’re a good—a good 

prisoner and not have a bunch of rules violations, you’re 

going to be young enough when you do earn parole to still be 

able to do something productive in our society, and I’m very 

hopeful that you will. And the sentence is appropriate for 

the reasons I have just stated as well as your age, your 

history, your family situation and the nature of the offenses. 

I agree that the sentences should all run at the same time, 

they should run concurrently with each other. 

With earned-time credits, the sentence imposed by the district 

court allowed Reed to be eligible for parole by age forty-three. See Iowa 

Code § 903A.2(1)(a) (allowing earned-time credit of 1.2 days for each day 

served); State v. Allensworth, 823 N.W.2d 411, 414–15 (Iowa 2012) 

(discussing earned-time credit). 

Reed appealed, and we transferred the case to the court of appeals. 

Reed argued: (1) his trial counsel was ineffective for failing to challenge 

the admissibility of evidence produced in the search and to investigate 

where Reed lived, (2) the evidence was insufficient to prove constructive 

possession of the drugs or firearms, and (3) his 100-year sentence was 

cruel and unusual punishment because he was not given an 

individualized hearing regarding his prior drug conviction at age 

seventeen. The court of appeals affirmed his convictions and sentence. 

The appellate court found the evidence sufficient for each conviction. It 
17

rejected his cruel and unusual punishment claim, holding Reed did not 

show a “confluence of the factors articulated in [State v. Bruegger, 773 

N.W.2d 862, 884 (Iowa 2009),] which would lead to an inference of gross 

disproportionality.” Moreover, Reed failed to show other circumstances, 

such as his lack of recidivism or a broad enhancement statute, that 

could create an inference of gross disproportionality under State v. Oliver, 

812 N.W.2d 636, 651–52 (Iowa 2012). The court of appeals concluded 

the absence of these factors combined with Oliver’s “principle of 

deference to legislative penalties counsels against an inference of gross 

disproportionality, as does the court’s focus on the rarity of such an 

inference.” Id. We granted Reed’s application for further review. 

II. Scope of Review. 

“On further review, we have the discretion to review all or some of 

the issues raised on appeal . . . .” State v. Harrison, 846 N.W.2d 362, 

365 (Iowa 2014) (quoting State v. Clay, 824 N.W.2d 488, 494 (Iowa 

2012)). We exercise that discretion here and confine our review to the 

sufficiency of the evidence of constructive possession. We decline to 

review the court of appeals decision regarding Reed’s ineffectiveassistance-of-counsel claims. The court of appeals decision shall stand 

as the final decision on those claims. See State v. Pearson, 804 N.W.2d 

260, 265 (Iowa 2011). Because we conclude Reed must be resentenced, 

we do not reach his constitutional challenge to his original sentence. 

We recently recapitulated our standard of review for sufficiency of 

the evidence supporting a guilty verdict in State v. Thomas: 

Sufficiency of evidence claims are reviewed for . . . correction 

of errors at law. In reviewing challenges to the sufficiency of 

evidence supporting a guilty verdict, courts consider all of 

the record evidence viewed in the light most favorable to the 

State, including all reasonable inferences that may be fairly 

drawn from the evidence. [W]e will uphold a verdict if 
18

substantial record evidence supports it. We will consider all 

the evidence presented, not just the inculpatory evidence. 

Evidence is considered 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. 

Inherent in our standard of review of jury verdicts in 

criminal cases is the recognition that the jury [is] free to 

reject certain evidence, and credit other evidence. 

847 N.W.2d 438, 442 (Iowa 2014) (alterations in original) (quoting State 

v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012)). 

III. Analysis. 

Possession may be actual5 or constructive. Id. The State relies on 

a theory of constructive possession in this case. The police found no 

weapons or drugs on Reed or in his Buick at the time of his arrest. 

Rather, the drugs and weapons were found at 1320 Randolph Street, the 

house occupied by Buchanan and her children (including Reed’s 

daughter). The house is owned by Chad Wolf, who stopped in for fifteen 

minutes the morning of the search but left before the police entered. 

Reed was a frequent visitor, if not a resident or overnight guest, at that 

address. The court of appeals held the evidence was sufficient to affirm 

all of his convictions. We disagree in part and conclude the evidence was 

sufficient to uphold the guilty verdicts on the drug convictions but 

insufficient to prove Reed’s possession of the firearms.6 

5Actual possession requires proof of a defendant’s physical possession of the 

drugs or firearms at some point in time. See, e.g., Thomas, 847 N.W.2d at 442

(reviewing our actual possession jurisprudence); State v. Vance, 790 N.W.2d 775, 784 

(Iowa 2010) (holding actual possession requires direct or circumstantial evidence that 

the drugs were on his or her person “at one time”). 

6Reed was convicted of possession of ten or more grams of cocaine base with 

intent to deliver while in the immediate possession of a firearm in violation of Iowa Code 

sections 124.401(1)(b)(3) and 124.401(1)(e), possession of marijuana in violation of 

section 124.401(5), and possession of a firearm by a felon in violation of section 724.26. 

The State was required to prove beyond a reasonable doubt that Reed possessed the 

drugs and weapons. See Iowa Code § 124.401(1) (“[I]t is unlawful for any person to 

manufacture, deliver, or possess . . . a controlled substance . . . .”); id. § 724.26(1) (“A 

person who is convicted of a felony in a state or federal court . . . who knowingly has 

 
19

Constructive possession exists when the evidence shows the 

defendant “has knowledge of the presence of the controlled substance 

and has the authority or right to maintain control of it.” State v. 

Maxwell, 743 N.W.2d 185, 193 (Iowa 2008) (quoting State v. Carter, 696 

N.W.2d 31, 38–39 (Iowa 2005)). Constructive possession may be proved 

by inferences. Id. Although the doctrine of constructive possession 

evolved in drug-possession cases, we apply the same principles in 

firearm cases. See State v. Eickelberg, 574 N.W.2d 1, 3–4 (Iowa 1997) 

(analyzing constructive possession of a firearm based on drug cases). 

“The existence of constructive possession turns on the peculiar 

facts of each case.” State v. Webb, 648 N.W.2d 72, 79 (Iowa 2002). 

Constructive possession may be inferred when the drugs or firearms are 

found on property in the defendant’s exclusive possession. State v. Kern, 

831 N.W.2d 149, 161 (Iowa 2013). But, Reed did not have exclusive 

possession of the house. When the premises are jointly occupied, 

additional proof is needed. Id. 

“[P]roximity to the [contraband], though pertinent, is not enough to 

show control and dominion.” State v. Cashen, 666 N.W.2d 566, 572 

(Iowa 2003). We have identified several nonexclusive factors to consider 

in determining whether the defendant possessed contraband discovered 

in jointly occupied structures: 

(1) incriminating statements made by a person; 

(2) incriminating actions of the person upon the police’s 

discovery of a controlled substance among or near the 

person’s personal belongings; (3) the person’s fingerprints on 

the packages containing the controlled substance; and 

(4) any other circumstances linking the person to the 

controlled substance. 

under the person’s dominion and control or possession . . . a firearm or offensive 

weapon is guilty of a class ‘D’ felony.”).

_________________________
20

Kern, 831 N.W.2d at 161 (quoting Maxwell, 743 N.W.2d at 194). The last 

factor is a “catchall” that captures other relevant circumstantial or direct 

evidence. State v. DeWitt, 811 N.W.2d 460, 475 (Iowa 2012). “The 

evidence of guilt must generate more than mere suspicion, speculation, 

or conjecture.” Id. 

We separately address the sufficiency of the evidence regarding 

Reed’s possession of the drugs and firearms. 

A. Constructive Possession of the Drugs. Viewing the facts in 

the light most favorable to the State, the evidence was sufficient for the 

jury to find Reed’s constructive possession of the drugs discovered at the 

Randolph Street home. The jury could infer from direct and 

circumstantial evidence that Reed was staying there with Buchanan and 

their daughter and shared the only adult bedroom where most of the 

cocaine base was found. The police surveillance team observed Reed 

visiting the home and staying for hours at a time in the weeks preceding 

his arrest. He always arrived in the same white Buick, parked in the 

driveway, and walked in without knocking. No other males were 

observed living there. Documentary evidence tied Reed to Buchanan and 

the Randolph Street address: the Rent-A-Center bill was addressed to 

both of them there, and the rental application Buchanan signed 

identified Reed as her husband. Reed’s Buick was parked in the 

driveway from 9:30 p.m. to midnight before the search and was still there 

at 7:30 a.m. the day of the search until Reed drove it away at 11:30 a.m. 

The jury could infer he spent the night and morning there until the 

search was executed minutes after his departure.

Most of the cocaine base, twenty-seven grams (enough for 200 

doses), was found beneath men’s pants in the cabinet in the bedroom 

along with a bag of marijuana. Reed’s cell phone had a photo taken of 
21

the cabinet a few weeks earlier. Reed weighed 210 pounds; the pants 

were large. There were also men’s pants on the floor and in the dresser 

drawer. A reasonable juror could conclude that Reed, a frequent visitor 

and father of one of the children in the home, owned the pants and 

shared the bedroom with Buchanan, the mother of his child living there. 

Reed’s phone also had a photo of him with white powder on his chin, 

cheeks, and lips. White powder was found on the bedroom dresser with 

a scale and small plastic bags with cut corners used for drug packaging. 

More white powder and loose marijuana was in the kitchen. Police 

observed persons making brief visits to the home, consistent with drug 

trafficking. Reed’s cell phone had sixty-nine calls of less than one 

minute during a three-day period and text messages arranging visits and 

referencing “crack,” also indicative of drug trafficking. Reed, who was 

unemployed, had $553 in cash on him when arrested. Reed obliquely 

suggested to police he and Buchanan could “help” them to avoid 

incarceration. 

When these facts collectively are viewed in the light most favorable 

to the State, substantial evidence supports Reed’s drug convictions:

“[T]his is not a case where proof of [possession] depends upon a single 

piece of evidence from which two reasonable inferences could be drawn.” 

State v. Keeton, 710 N.W.2d 531, 535 (Iowa 2006); cf. State v. Truesdell, 

679 N.W.2d 611, 618–19 (Iowa 2004) (“[W]hen two reasonable inferences 

can be drawn from a piece of evidence, we believe such evidence only 

gives rise to a suspicion, and, without additional evidence, is insufficient 

to support guilt.” (Emphasis added.)). We must view the evidence 

supporting the guilty verdicts as a whole, not as separate pieces of 

evidence viewed in isolation. Keeton, 710 N.W.2d at 535 (“[I]t is not for 

us to interfere with the finding made when supported by substantial 
22

evidence, even though the evidence may have also supported a finding 

favorable to the defendant.”). 

We recently surveyed our cases on drug possession in jointly 

occupied places and held sufficient evidence supported drug convictions 

in State v. Thomas. Officers entered an apartment rented by Raymond 

Norvell after observing marijuana use through a window. Thomas, 847 

N.W.2d at 440. Six people were inside the kitchen; two, Isaiah 

Henderson and Tremayne Thomas, ran into a bedroom. Id. Thomas 

tried to hold the door shut, but the officer shouldered the door open and 

ordered Thomas and Henderson to the floor. Id. Henderson complied, 

but the officer had to force Thomas to the ground. Id. at 440–41. The 

officers found next to the door four individually wrapped bags of 

marijuana and four individually wrapped bags of crack cocaine 

prepackaged for sale. Id. at 441. Thomas had $120 on his person. Id. 

Henderson denied owning the drugs and said he ran to the bedroom to 

get his cell phone and prescription pills. Id. Thomas gave police officers 

a false name and said he could not remember his social security number. 

Id. Thomas eventually gave the officers his correct name and said he had 

given a false name because he was subject to an outstanding arrest 

warrant. Id. There actually was no outstanding arrest warrant for 

Thomas. Id. The jury convicted Thomas of possession with intent to 

deliver marijuana, crack cocaine, and related charges. Id. at 441–42. 

We affirmed his convictions. Id. at 442, 447. We noted Thomas 

“did not own and was not in exclusive possession of the place where the 

drugs were found.” Id. at 445. After surveying our caselaw, we 

concluded our holding “fit[] comfortably among our precedents where we 

have found the evidence sufficient to sustain a finding of guilt.” Id. at 

447. We noted “the drugs were found where Thomas had been holding 
23

the door back from the police.” Id. at 443. The only logical explanation 

for Thomas’s actions was that he was buying time to empty his pockets 

of the narcotics. Id. Although Henderson also ran into the bedroom, he 

went to the opposite corner, away from the drugs and towards his 

personal effects. Id. at 443–44. Here, Reed lacked exclusive possession 

of the bedroom where the drugs were found, but he had been in the 

home overnight and departed only minutes before the search. Most of 

the drugs were found under large men’s pants that presumably were 

Reed’s. 

Reed relies on State v. Webb, in which we held the evidence was 

insufficient to support a conviction for possession of marijuana found on 

the defendant’s living room table and in his bedroom. 648 N.W.2d at 79–

81. Police went to Webb’s apartment in response to an anonymous 

complaint. Id. at 75. Webb was not present, but Webb’s live-in girlfriend 

gave police permission to search for weapons. Id. The officers saw 

marijuana seeds and stems in plain sight in the living room, and Webb’s 

girlfriend revoked her consent. Id. The police secured the premises and 

executed a search warrant later that day. Id. They found marijuana in a 

bedroom Webb shared with his girlfriend and more marijuana in the 

freezer. Id. No drugs were “found near or among Webb’s personal 

belongings.” Id. at 79. Webb arrived at the apartment several hours 

later, and police searched him. Id. at 75. The police found $336 in cash 

on him, but no drugs or drug paraphernalia. Id. Webb acted 

unconcerned throughout the encounter. Id. at 80. 

We held the State failed to meet its burden to show Webb had 

constructive possession of the marijuana. Id. at 81. We found it was 

significant that the State failed to present evidence regarding when Webb 

had last been in the house and noted Webb made no incriminating 
24

statements. Id. at 79–80. By contrast, here, the police found the drugs 

under what the jury could find were Reed’s clothes in his shared 

bedroom minutes after he left the house. 

In State v. Kern, we held the evidence was insufficient to convict 

the defendant of possessing marijuana discovered in a house shared with 

her boyfriend, who claimed the drugs were his alone. 831 N.W.2d at 

161–62. We noted competing considerations at play in our constructive 

possession jurisprudence: “Convictions for possession of drugs should be 

possible under the law, even though the defendant is not caught ‘redhanded,’ but innocent bystanders in the wrong place at the wrong time 

must be protected from a conviction.” Id. at 161. We found “no evidence 

that Kern was more than an agreeable bystander” to her boyfriend’s grow 

operation. Id. at 162. By contrast, Buchanan acted suspiciously during 

the search but never claimed the drugs were hers, much less hers alone. 

Sufficient evidence tied Reed to the drugs, and the jury could find he was 

not “an innocent bystander[] in the wrong place at the wrong time.” See 

id. at 161. 

B. Constructive Possession of the Firearms. We reach a 

different conclusion as to the firearms. The jury found Reed guilty of 

possession of a firearm as a felon in violation of section 724.26 and 

possession of more than ten but less than fifty grams of cocaine base 

with intent to deliver while in possession or control of a firearm, in 

violation of section 124.401(1)(e). Both statutes require proof of actual or 

constructive possession. The felon-in-possession statute requires proof 

that an adjudicated felon has a firearm “knowingly . . . under the

person’s dominion and control or possession.” Iowa Code § 724.26(1). 

“We have long held that ‘dominion and control’ may be shown by 

constructive, as well as actual, possession.” State v. Turner, 630 N.W.2d 
25

601, 609–10 (Iowa 2001) (reversing conviction under section 724.26). 

The firearm enhancement statute, section 124.401(1)(e), requires proof 

that the defendant had “immediate possession or immediate control” of a 

firearm. State v. McDowell, 622 N.W.2d 305, 307 (Iowa 2001). This may 

be proved by showing Reed had been “in such close proximity to the 

weapon as to claim immediate dominion over it” and that he had 

“knowledge of the presence of the firearm.” Id. Such knowledge and 

control may be inferred if the firearm is found in a location under the 

defendant’s exclusive control. See id. at 308 (citing State v. Reeves, 209 

N.W.2d 18, 23 (Iowa 1973)). But here, the weapons were found in the 

bedroom shared with Buchanan. Accordingly, Reed’s knowledge of the 

weapons and control over them “will not be inferred but must be 

established by proof. Such proof may consist either of evidence 

establishing actual knowledge by the accused, or . . . incriminating 

statements or [other] circumstances from which a jury might lawfully 

infer knowledge . . . .” Reeves, 209 N.W.2d at 22; see McDowell, 622 

N.W.2d at 308. The State’s evidence was insufficient to prove Reed’s 

knowledge and control over the weapons. 

The fingerprints recovered from the guns matched neither Reed nor 

Buchanan. See Thomas, 847 N.W.2d at 443 (noting constructive 

possession can be proved by defendant’s fingerprints on the contraband). 

Moreover, while the guns were found in the same bedroom as the drugs, 

the drugs were under men’s pants and the weapons were next to a 

woman’s purse and a pink lotion bottle. Reed’s cell phone had a photo of 

an assault rifle but not the handguns found in the bedroom. The 

handguns are not visible in Reed’s cell phone photo showing the built-in 

with the cabinet doors closed. 
26

In McDowell, we addressed a sufficiency-of-the-evidence challenge 

to a firearm enhancement under section 124.401(1)(e). 622 N.W.2d at 

306. McDowell was a regular visitor at his girlfriend’s house. Id. at 307. 

He sold cocaine to a confidential informant on two occasions from a 

bedroom there. Id. at 306. Police executed a search warrant and seized 

cocaine from the closet and kitchen table, as well as a police scanner, an 

electronic scale, and drug paraphernalia. Id. When the police entered, 

McDowell was in the bedroom where the two controlled buys had 

occurred. Id. That bedroom contained a letter addressed to McDowell 

and his girlfriend, as well as two weight conversion charts. Id. Next to 

those charts was a woman’s purse containing a .22 caliber revolver. Id. 

McDowell was convicted of possession of cocaine with intent to distribute 

while in immediate possession or control of a firearm. Id. at 307. We 

held the State had failed to prove McDowell’s possession of the firearm: 

The circumstantial evidence on which the State relies 

to establish defendant’s knowledge of the firearm’s presence 

all pertains to his frequent presence in Scott’s home and his 

use of the northwest bedroom to sleep and conduct drug 

transactions. There is no evidence that defendant had ever 

accessed the purse belonging to Scott in which the firearm 

was contained. To the extent this evidence shows some 

dominion and control by defendant over various portions of 

Scott’s residence, that dominion or control was certainly not 

exclusive. There is no evidence of the type credited in the 

Reeves case to establish his knowledge of or control over the 

firearm in Scott’s purse. 

Id. at 308. Similarly, Reed was a frequent visitor at the Randolph Street 

home, and the State presented sufficient evidence to show he 

constructively possessed the drugs kept in the bedroom shared with 

Buchanan. The drugs were found beneath what the jury could infer were 

Reed’s pants, but the firearms with the fingerprints of a stranger were 

four feet away next to a woman’s purse and pink lotion bottle, 
27

presumably Buchanan’s. The evidence linking Reed to the guns in that 

room is as attenuated as the evidence found insufficient in McDowell. 

In State v. Bash, we held a defendant who shared a bedroom with 

her spouse did not have constructive possession over marijuana found 

there. 670 N.W.2d 135, 139 (Iowa 2003). Patricia Bash lived in an 

apartment with her husband and their three sons. Id. at 136. Police 

officers executed a search warrant for the premises, and Bash told them 

that any drugs found in the bedroom belonged to her husband. Id. The 

officers found marijuana in a box on her husband’s nightstand and a 

bong on the floor on her husband’s side of the bed. Id. The marijuana 

was surrounded by her husband’s personal effects. Id. at 139. Bash 

knew her husband had kept marijuana in the box before but insisted 

marijuana was her husband’s—not hers. Id. at 138–39. We held that 

“raw physical ability” to exercise control over the marijuana was 

insufficient to prove constructive possession. Id. at 139. Similarly, 

although Reed did not claim the handguns were Buchanan’s, the 

weapons were found next to a woman’s personal effects in the bedroom. 

As in McDowell, the evidence linking Reed to the guns in that room is as 

attenuated as the evidence found insufficient in Bash. 

The jury could believe the officer’s testimony that drug dealers 

typically have weapons to protect their drugs and cash. We conclude on 

this record, however, that the mere proximity of the firearms to the drugs 

is insufficient to prove Reed’s constructive possession of the weapons. In 

Parker v. State, Maryland’s highest court held such police testimony was 

insufficient to prove a drug dealer’s possession of a weapon in the same 

house. 936 A.2d 862, 883–85 (Md. 2007). Parker was arrested in a 

house with nine vials of cocaine and three plastic bags of marijuana on 

his person. Id. at 865. In the second floor hallway, police discovered an 
28

operable, loaded .357 magnum handgun. Id. Parker was convicted of 

several drug and weapon-related offenses and appealed. Id. at 865–66. 

The record was unclear regarding where in the house Parker was 

arrested, whether Parker lived there or merely visited, and whether the 

gun was in plain view. Id. at 885. The court summarized the State’s 

argument and rejected it: 

The State also suggests that, because “guns are a tool 

of the drug trade,” the amounts of drugs found on Parker’s 

person and in the house “allow a reasonable inference of 

Parker’s constructive possession of the handgun.” The State 

cites no case or other authority that would support such an 

attenuated inference. . . . 

The “mere proximity to the [contraband], mere 

presence on the property where it is located, or mere 

association, without more, with the person who does control 

the . . . property on which it is found, is insufficient to 

support a finding of possession.” Terrance Parker’s degree of 

proximity to the handgun found on the second floor of 800 

Belnord Avenue is unknown. Except for his presence in the 

house at the time of the search, Parker’s connection to 800 

Belnord Avenue is unclear. The evidence is totally 

insufficient to support an inference that Parker knowingly 

exercised dominion or control over the handgun. 

Id. (alteration in original) (citations omitted) (quoting Taylor v. State, 697 

A.2d 462, 466 (Md. 1997)); see also United States v. Cunningham, 517 

F.3d 175, 179 (3d Cir. 2008) (“[A]lthough guns and drugs are often 

linked, the presence of one does not prove knowledge of the other.”). The 

State cites no contrary authority linking firearms to narcotics nearby. 

On this record, we decline to conclude that proof of Reed’s constructive 

possession of the drugs, without more, was sufficient to prove his 

constructive possession of the handguns with someone else’s fingerprints 

found next to a woman’s personal effects. See McDowell, 622 N.W.2d at 

308. 
29

We hold the evidence was insufficient to prove Reed’s constructive 

possession of the firearms under Iowa Code sections 124.401(1)(e) or 

724.26. The district court had applied the enhancement in section 

124.401(1)(e) to double Reed’s sentence for possession of cocaine with 

intent to deliver from twenty-five years in prison to fifty years. Reed 

must be resentenced “in the absence of a finding that defendant had 

immediate possession or control of a firearm.” McDowell, 622 N.W.2d at 

309. 

IV. Disposition. 

We affirm the decision of the court of appeals rejecting Reed’s 

claims that his trial counsel was ineffective and vacate that court’s 

resolution of his remaining claims. We reverse the district court’s 

judgment of conviction for possession of a firearm and resulting sentence 

enhancement under Iowa Code section 124.401(1)(e), as well as his 

conviction as a felon in possession of a firearm in violation of section 

724.26. We affirm Reed’s remaining convictions and remand the case for 

resentencing consistent with this opinion. We do not reach Reed’s 

constitutional challenge to his original sentence.

COURT OF APPEALS DECISION AFFIRMED IN PART AND 

VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED IN

PART AND REVERSED IN PART; CASE REMANDED FOR 

RESENTENCING. 

All justices concur except Hecht and Wiggins, JJ., who concur

specially. 
30

#13–0988, State v. Reed

HECHT, Justice (concurring specially).

This court has followed a “cautious, but very sound, 

jurisprudential approach” when applying the doctrine of constructive 

possession. State v. Thomas, 847 N.W.2d 438, 451 (Iowa 2014) (Hecht, 

J., dissenting). As we explained in State v. Reeves:

[W]here the accused has not been in exclusive possession of 

the premises but only in joint possession, knowledge of the 

presence of the substances on the premises and the ability 

to maintain control over them by the accused will not be 

inferred but must be established by proof. Such proof may 

consist either of evidence establishing actual knowledge by 

the accused, or evidence of incriminating statements or 

circumstances from which a jury might lawfully infer 

knowledge by the accused of the presence of the substances 

on the premises.

209 N.W.2d 18, 23 (Iowa 1973) (emphasis added). In following our 

cautious approach to the doctrine, we have noted that “when two 

reasonable inferences can be drawn from a piece of evidence, . . . such 

evidence only gives rise to a suspicion, and, without additional evidence, 

is insufficient to support guilt.” State v. Truesdell, 679 N.W.2d 611, 618–

19 (Iowa 2004); accord State v. Schurman, 205 N.W.2d 732, 734 (Iowa 

1973) (“[T]he circumstances must be entirely consistent with defendant’s 

guilt, [and] wholly inconsistent with any rational hypothesis of his 

innocence . . . .”). These limiting principles inform our role as “careful 

gatekeepers” whose responsibility it is to assure convictions are based on 

substantial evidence of proof beyond a reasonable doubt rather than 

suspicion. Thomas, 847 N.W.2d at 458. 

I write separately to emphasize my conclusion that many of the 

facts the State cites in support of its contention that Reed constructively 

possessed the drugs seized from Buchanan’s house raise more than one 

reasonable inference and they are therefore speculative when examined 
31

individually. This conclusion is significant, in my view, because our 

cautious approach to the doctrine of constructive possession should not 

recognize a stack of speculative inferences piled one on top of another as 

substantial evidence that Reed constructively possessed the drugs 

beyond a reasonable doubt. See id. at 451–52 (asserting “we have 

required more than inference piled upon inference amounting ultimately 

to mere speculation” in constructive possession cases involving multiple 

occupants or residents of a dwelling). Put another way, I do not believe 

inferences based on speculation are transformed into substantial 

evidence when they are accumulated in a series with other speculative 

inferences. 

The record clearly includes substantial evidence connecting Reed 

to the house in question. He was a frequent visitor there and sometimes 

stayed for several hours. He was observed entering the house without 

knocking, and he sometimes took out the trash. But as I noted in 

Thomas, “we have frequently maintained proof of access to a place where 

a substance is found cannot by itself support a finding of unlawful 

possession.” Id. at 448. Thus, the substantial evidence of Reed’s access 

to the house does not support an inference that he was a regular user or 

joint occupant of the bedroom—let alone a person who exercised 

dominion and control of the cocaine found there. See State v. McDowell, 

622 N.W.2d 305, 308 (Iowa 2001) (concluding evidence of a defendant’s 

frequent presence in a home did not necessarily demonstrate dominion 

and control over all items found inside it). 

My colleagues are willing to infer that the pair of large men’s pants 

on a pile of other garments in the bedroom were Reed’s, and so was the 

cocaine found under them. The record reveals that Reed weighed 210 

pounds. I think the evidence connecting Reed—as opposed to the other 
32

men frequenting the house—to the pants is speculative at best. I leave 

room for the possibility on this record that Ramon Brumfield (whose 

identification card was found in the same room), or Chad Wolf (the owner 

of the house seen entering the house on the morning of the search), or 

any of the other men seen entering the house during the surveillance 

might also wear large pants. Furthermore, the pants concealing the 

cocaine were atop a pile of clothing that included a woman’s garments. If 

we infer Buchanan’s bedroom was jointly occupied by a man and a 

woman, the fact finder could only speculate that the man—not the 

woman—had dominion and control over the cocaine found between the 

man’s pants and the woman’s clothing. 

My colleagues also find significant a rental agreement from the 

Rent-a-Center addressed to Reed and Buchanan and found in the 

bedroom. I do not find the agreement probative of Reed’s dominion and 

control of the cocaine found in the bedroom because there is no evidence 

Reed signed or ratified the document and because it represented falsely 

that he was married to Buchanan. 

My colleagues conclude Reed made incriminating statements after 

his arrest establishing his dominion and control over the drugs. I do not 

understand Reed’s statements as an admission of his dominion and 

control over the drugs seized in the search of Buchanan’s house. I 

understand the statements instead as a vague intimation that Reed and 

Buchanan could “help” police and as an expression of Reed’s willingness 

to cooperate with law enforcement officers in furtherance of his desire to 

protect Buchanan—the mother of his child—from prosecution. Although 

I believe a fact finder could reasonably infer from Reed’s statements that 

he knew Buchanan’s house contained contraband, the statements 

standing alone were not in my view sufficient to support an inference 
33

that he exercised dominion and control over the contraband. See State v. 

Kern, 831 N.W.2d 149, 162 (Iowa 2013) (concluding that knowledge of a 

vast marijuana growing operation in a house did not prove the defendant 

who jointly possessed the property had dominion and control over the 

marijuana); cf. State v. Atkinson, 620 N.W.2d 1, 5–6 (Iowa 2000) 

(concluding a passenger in a car did not exercise dominion and control 

over the driver’s fanny pack, which she knew contained drugs, even 

though an officer observed her making furtive movements in the vehicle 

near where the fanny pack was discovered).

I also do not share my colleagues’ willingness to infer that a 

photograph found on Reed’s cell phone depicting a piece of furniture 

found in the bedroom is probative of Reed’s dominion and control of the 

cocaine seized from that room during the search. Although this 

photograph might support an inference that Reed (or someone using his 

phone) might have had access to the room, in my view it does not 

support a fair inference that Reed regularly used the room or that he 

exercised dominion and control over the cocaine found there at the time 

of the search. Furthermore, even if the State adduced substantial 

evidence that Reed had joint access to Buchanan’s bedroom, that fact 

surely would not be sufficient under our precedent to support a finding 

of his dominion and control over drugs found there. See State v. Bash, 

670 N.W.2d 135, 139 (Iowa 2003) (“[T]he authority or right to maintain 

control includes something more than the ‘raw physical ability’ to 

exercise control over the . . . substance.”).

Although I find many of the inferences credited by my colleagues 

are speculative and therefore not substantial evidence of Reed’s dominion 

and control of the drugs, I nonetheless concur in the result here. I do so 

because I find inferences from Reed’s phone records, photographs found 
34

on his cell phone depicting what appears to be white powder on his face, 

and the significant amount of cash found on his person at the time of his 

arrest are minimally sufficient to constitute proof beyond a reasonable 

doubt that Reed exercised dominion and control over the cocaine seized 

during the search of the house. A reasonable fact finder could find the 

extraordinarily large volume of phone calls of brief duration made to and 

from the cell phone during a three-day period in close temporal proximity 

to the arrest was consistent with drug dealing by Reed. See United 

States v. Samuels, 611 F.3d 914, 918 (8th Cir. 2010) (concluding a 

defendant’s “unusually high volume of calls . . . suggested his 

involvement in the drug trade”). The photographs of Reed with white 

powder about his face can also, in my view, reasonably support an 

inference that he had dominion and control of the cocaine found in the 

search of the bedroom of the house from which he departed minutes 

before the arrest. And although we have concluded a defendant’s 

possession of $336 on his person was “too tenuous and speculative to 

support an inference of constructive possession” of an illegal substance 

seized in a search of his residence, State v. Webb, 648 N.W.2d 72, 80 

(Iowa 2002), Reed had more than $500 on his person at the time of his 

arrest immediately after leaving Buchanan’s house where the cocaine 

was seized. These facts support fair inferences that are based on “more 

than suspicion, speculation, or conjecture,” see State v. DeWitt, 811 

N.W.2d 460, 475 (Iowa 2012), and are therefore minimally sufficient to 

sustain a finding of Reed’s dominion and control of the drugs. 

Accordingly, I concur in the result.

Wiggins, J., joins this special concurrence.