IN THE COURT OF APPEALS OF IOWA
No. 13

- 0236 Filed March 12, 2014

STATE OF IOWA, Plaintiff

- Appellee,

vs. LEO WILSON BUSHNELL , Defendant

- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Linn County, Robert E. Sosalla , Judge.

Leo Bushnell appeals from convictions of possession of a controlled substance, possession of drug paraphernalia, and interference with official acts.
AFFIRMED.

Lars G. Anderson of Holland and Anderson, L.L.P. , Iowa City , for appellant. Thomas J. Miller, Attorney General, Kyle P. Hanson , Assistant Attorney General, Jerry Vander Sanden , County Atto rney, and Lisa Epp , Assistant County Attorney, for appellee.

Considered by Potterfield, P.J., and Doyle and Bower, JJ.2

POTTERFIELD, P.J. Leo Bushnell appeals from convictions of possession of a controlled substance, possession of drug paraphernalia, an d interference with official acts. 1 He contends there was insufficient evidence of possession and there was no evidence of active resistance to support the convictions . Bushnell also argues trial counsel was ineffective in failing to object to testimony that he was under the influence of controlled substances, had mental health issues, and had a prior criminal conviction. There was substantial evidence from which the jury could find constructive possession. Bushnell did more than “ ignore[] law enforceme nt ” from which the jury could find interference. We preserve the ineffectiveness claims for possible postconviction relief proceedings. I. Background Facts and Proceedings. At about 1 p.m. on March 8, 2012, uniformed probation officers responded
to assist Cedar Rapids police with a domestic disturbance. Monica Wood, Leo Bushnell ’ s live

- in girlfriend, was in the hall outside of the apartment when officers
arrived. Wood reported she had resided at the apartment with Bushnell for over
one month. She reported Bushnell had been drinking and using synthetic marijuana ( known as “ K2 ” ), they got in a fight over a cell phone, and he was in the apartment having locked her out. The law enforcement officers pounded loudly at the apartment door, identified t hemselves as police, and requested that Bushnell open the door, but

1 The convictions of possession of drug paraphernalia and interference with official acts constitute simple misdemeanors from which the defendant has no right of appeal. Iowa Code § 814.6(1)(a) (2011). However, the supreme c ourt treated the notice of appeal as to those two convictions as an application for discretionary review, see Iowa R. A pp. P. 6.108, which was granted. The case was then transferred to this court.3

Bushnell did not answer

. Their knocking and announcements were loud enough that residents of other apartments came out to see what was happening. W ood , who was wait ing on the first floor of the building, was abl e to hear the officers pounding on the third

- floor apartment door. Bushnell called Wood to say “ he will do anything I want him to do, just make the police go away. ”
Kno w ing that Bushnell had been in a domestic incident , may have been using drugs, and had past mental health issues , the o fficers decided to enter the apartment to check on Bushnell. T hey obtained a spare key from the apartment manager, but the door was chain ed. They broke the chain, again announc ing their presence and identif ying themselves. Officer Ben jamin Keen checked a front closet while Officer Steven Warner and a third officer proceeded further into the apartment. Officer Warner and the other police officer yelled Bushnell ’ s

name but received no res ponse. They came upon a locked door, knocked, and announced who they were. Receiving no response , the officers force d the door
open. The o fficers found Bushnell lying on a bed with a sheet pulled over his body and face

. Bushnell ’ s body was rigid . W hen officers removed the sheet they found he was “ wide awake. ” After a couple commands, Bushnell showed his hands. Officers searched the apartment. In the living room they found a small safe. Bushnell did not respond to questioning by officers other than to state that the safe was not his but Wood ’ s. W ood explained the safe and its contents belonged to Bushnell. Wood did not have a key to the safe but said she knew where Bushnell hid the key . She a ssisted officers in open ing the safe. Inside the4

s afe were canisters containing synthetic marijuana and a variety of drug pipes. Lab testing confirmed the presence of salvinorin A, a type of synthetic marijuana

. 2 The safe contained no personal documents or items, had no name associated with it, ha d no receipt of its purchase, and contained no other identifying information. No fingerprints, DNA, or other type of physical evidence was collected from the safe, the key to the safe, or items found in the safe. Prior to trial, counsel for Bushnell filed a m otion in l imine requesting, in part, that testimony and evidence “ that the defendant is currently on probation ”
be excluded. W ith respect to B ushnell ’ s probationary status , t he di strict c ourt ruled the State was not to “ inquire into it in any direct exami nation and avoid that in any direct examination. ” Wood, and O fficers Keen and Warner testified at trial . The officers not ed having “ worked ” with Bushnell . They also testified that they entered the apartment to check on Bushnell because they knew of his mental health issues and because Wood reported he was using K2. Bushnell was convicted as charged and now appeals.

2 The lab report describes the following items submitted for testing. T he first, containing Sy nthetic Marijuana described as [t] wo packets of name [] brand K2 inside it. One K2 packet is labeled K2 Summit with purple writing. The second packet is K2 Citron with orange writing. Each packet is labeled 3 grams

. The Citron packet is the only one with leafy substance inside it. However, upon testing of the contents of these two packets, “no controlled substance found.” The second set of items was “Synthetic Marijuana described as [t]wo packets of Organic Salvi a Divinorum 15x. Both packets have green leafy substance material.” This set of items contained the controlled substance, “salvinorin A.” [ State ’ s Ex. 4; App. 88 ]

.5 II. Scope and Standards of Review

. We review challenges to the sufficiency of the evidence for the correction of legal error. State v

. Cashen , 666 N.W.2d 566, 569 (Iowa 2003). We uphold the jury ’ s verdict if the record contains substantial evidence to support it. Id

. Substantial evid ence is the quality and quantity of proof that could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id

. To gauge whether the evidence is substantial, we review the record in the light most favorable to the verdict

. Id

. Claims of ineffective assistance of counsel are derived from the Sixth Amendment of the United States Constitution. Bowman v

. State , 710 N.W.2d 200, 203 (Iowa 2006). We review constitutional claims de novo. Id

. III. Discussion.
A

. Possession

. “ When the State charges a person with possession, the State must prove the person exercised dominion and control over the contraband, had knowledge of the contraband ’ s presence, and had knowledge the material was a [controlled substance.] ” S tate v

. Maxwell

, 743 N.W.2d 185, 193 (Iowa 2008) ; State v

. Webb , 648 N.W.2d 72, 76 (Iowa 2002). Actual possession is not required, and proof of constructive possession is enough. “ [A]ll that is necessary is that the accused

‘ maintains control or a right to control ’ the contraband. ” A person has actual possession of a controlled substance when that substance is found on the person. A person has constructive possession of a controlled substance “‘ when the person has knowledge of the presence of the contr olled substance and has the authority or right to maintain control of it. ’” C onstructive possession is recognized by inferences. However, constructive possession cannot rest simply on proximity to the controlled substance.

. . . . When a person has not been in exclusive possession of the premises where the drugs were located, several factors are6
considered when determining whether the person had constructive possession of the controlled substance. These factors include: (1) incrimi nating statements made by the person; (2) incriminating action s of the person upon the police ’ s discovery of a controlled substance among or near the person ’ s pers onal belongings; (3) the person ’ s fingerprints on the packages containing the controlled subs tance; and (4) any other circumstances linking the person to the controlled substance. Maxwell , 743 N.W.2d at 193

- 94 (citations omitted)

. Although the synthetic marijuana was not found on Bushnell ’ s person, there is substantial circumstantial evidence fr om which a rational jury could find the defendant was in constructive possession of the controlled substance recovered from the safe in his apartment. According to Wood ’ s testimony, she moved into Bushnell ’ s apartment and she did not bring the safe. She testified the safe was Bushnell ’ s and he hid the key when it was not on him. Although the defendant challenged Wood ’ s credibility , issues of credibility are for the jury to determine. State v

. Shanahan , 712 N.W.2d 121, 135 (Iowa 2006) ( “ The function of t he jur y is to weigh the evidence and ‘ place credibility where it belongs. ’” (citation omitted)). The jury was free to believe Wood ’ s statements placing the controlled substance and paraphernalia in Bushnell’s control and possession.
B

. Interference with Official Acts

. Interference with official acts occurs when a person “ knowingly resists or obstructs anyone known by the person to be

a peace officer

. . . in the performance of any act which is within the scope of the lawful duty or auth ority of that officer

. ” Iowa Code § 719.1(1). The purpose of
the statute “ is to enable officers to execute their peace

- keeping duties calmly, efficiently, and without hindrance. ” State v

. Buchanan , 549 N.W.2d 291, 294 (Iowa 1996).7
Here, t he jury was instructed: The State must prove all of the following elements of Interference With An Official Act: 1. On or about the 8th day of March, 2012, the defendant

. . . knew Ben Keen and Steven Warner were peace officers who were responding to a call. 2. The defendant knowingly resisted or obstructed Ben Keen and Steven Warner in their official investigation. The jury was also in structed , “‘ Resist ’ means to oppose intentionally, interfere
with or withstand. ‘ Obstruct ’ means to hinder intentionally, retard or delay. ” The instruction is consistent with our observation s in State v

. Hauan , 361 N.W.2d 336, 338

- 39 (Iowa Ct. App. 1984) , that “ r esist ” means opposing the officer “‘ through the use of actual or constructive forc e making it reasonably necessary for the officer to use force to carry out his duty , ’” and “[o]bstruct has been defined as ‘ to interpose obstacles or impediments, to hinder, impede, or in any manner intrude or prevent.’ ” (Citation s omitted.) See also Blac k ’ s Law Dictionary 1183 ( 9 th ed. 2009 ) (stating “ o bstruct ion ” means to “ something that impedes or hinders , . . . an obstacle ” ). The threshold question is whether the defendant ’ s acts constituted a hindrance of official duties. Hauan , 361 N.W.2d at
339

. Bushnell argues this case is like State v. Smithson , 594 N.W.2d 1, 3 (Iowa 1999), where the supreme court reversed a conviction for interference with official acts which was “ based entirely on Smithson ’ s failure to turn down the music at the officer ’ s re quest .” The court noted that interference with official acts “conveys the idea of active interference.” Smithson , 594 N.W.2d at 2 (citation omitted). We believe there was evidence from which the jury could find active interference.8

There was evidence B ushnell knew of the officers ’ presence ; indeed, he ask ed Wood to “ make the police go away .” The jury could also reasonably find
that Bushnell actively hindered the officers by chaining the front door of the apartment, and retreating to an interior room and locking the door to that room. Substantial evidence supports the interference conviction. C

. Ineffective

- assistance

- of

- counsel claims

. To prevail on h is claims of ineffective assistance of counsel, Bushnell must prove: “ (1) counsel failed to perform an essential duty and (2) prejudice resulted. ” Shanahan , 712 N.W.2d at 136 . “ When there is a reasonable probability that, but for the counsel ’ s unprofessional errors, the result of the proceeding would have been different, prejudice results. ” Id

. (citations and internal quotation marks omitted). We generally will preserve an ineffective

- assistance

- of

- counsel claim for a postconviction relief proceeding “ where preserving the claim allows the defendant to make a complete record of the claim, allows trial counsel an opportunity to explain his or her actions, and allows the trial court to rule on the claim. ” Id. We believe this is a case where we must allow trial counsel an opportunity to explain her actions in not objecti ng to testimony by officers about their knowledge of the defendant’s mental health and substance abuse issues. We therefore preserve the ineffectiveness claim for possible postconviction relief proceedings and otherwise affirm the convictions

. AFFIRMED.