IN THE COURT OF APPEALS OF IOWA No. 14

- 1597 Filed December 23, 2015 STATE OF IOWA, Plaintiff

- Appellee,

vs. KELLY RICHARD NIEMEYER, Defendant

- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer , Judge.

A defendant appeals his drug and firearm conviction s following a bench trial on stipulated evidence

. AFFIRMED.

Susan R. Stockdale, Windsor Heights, for appellant. Thomas J. Miller, Attorney General, and Kevin Cmelik and Sharon K. Hall, Assistant Attorney s General, for appellee.

Considered by Potterfield, P.J., Tabor, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (20 15 ).2

TABOR, Judge. After the district court denied his motion to suppress, Kelly Niemeyer waived his right to a jury trial and stipulated to the minutes of evidence. The district cour t found him guilty of two marijuana offenses and being a felon in possession of a firearm. On appeal Niemeyer claims his trial counsel was ineffective for failing to object to the waiver colloquy. He also challenges the intent

- to
- deliver element of his m arijuana possession offense. Because the colloquy was adequate under existing law, we hold Niemeyer’s counsel had no duty to object and was not ineffective. On the sufficiency challenge, we find substantial stipulated evidence to support Niemeyer’s convi ction for possession with intent to deliver.
I. Background Facts and Proceedings Black Hawk County law enforcement suspected Niemeyer was involved in the marijuana trade, and on January 8, 2014, deputies searched trash left curb side at his Waterloo residence. The search unearthed , among other things, marijuana stems , potting soil, and mail addressed to Niemeyer at that residence. To follow up, d eputies obtained a search warrant for the house where Niemeyer lived with his girlfriend, Emily Clark, and their young daughter

. Upon arriving at the house, Deputy Matthew Harris re ad the warrant to Clark . Clark initially denied knowing about Niemeyer’s marijuana operation. Clark eventually admitted she was aware of “trim”

— that is, cut

- up marijuana plants in the basement, but added Niemeyer did not allow her access to the basement.3

In the basement, investigators found a marijuana growing operation, including equipment, marijuana plants and seeds, bo ttles of liquid fertilizer,

seve ral 1000

- watt ballasts, heat lamp s and reflectors, an electric blower with duct work, and numerous plant starter trays . The deputies also found a loaded Smith and Wesson AR

- 15 rifle and boxes of ammun i tion next to the marij uana plants

. After walking upstairs from the basement, Deputy Harris encountered Niemeyer. T he deputy read him the warrant and his Miranda rights. Niemeyer denied selling marijuana and told the deputy the grow operation in the basement belonged to someon e else. When asked about the loaded rifle , Nie meyer said he was “holding on to it” for a friend but a cknowledged doing so was a “ bad idea ” because he was a felon. W hen asked about Clark’s involvement, “Niemeyer stated that everything related to illegal narcotics or weapons belonged to him and that she had nothing to do with it.” In the kitchen, investigators found a glass marijuana pipe on the counter along the south wall. In the same area, they found a bout 75 empty baggies, a clear plast ic sandwich bag containing marijuana , a glass jar containing marijuana residue, and a vacuum sealer for plastic bags

. They also located a digital scale and a drug ledger in the lowe r cabinet along th at same wall . In the dining room, they found a marijuana grinder on the table , $208 in a desk drawer , and a glass jar containing marijuana behind a fish tank. Niemeyer also had $304 in cash in
his wallet. Based on what investigat ors found during the search of Niemeyer’s house, the State filed a trial information o n January 17, 2014, charg ing him with three4

counts: (I ) manufacturing m arijuana , in violation of Iowa Code sections 124.401(1)(d), 124.401A, and 12 4.401(1)(e) (2013) ; (II ) possession of marijuana with the intent to d eliver , in violation of Iowa Code sections 124.401(1)(d), 124.401A, and 124.401(1)(e ) ; and (III ) possession of a firearm by a f elon, in violation of Iowa Code section 724.26

. In early spring of 2014, Niemeyer fil ed a n unsuccessful motion to suppress the evidence seized at his home. On May 9, 2014, Niemeyer filed a signed wa i ver of his right to a jury trial . The written waiver acknowledged his attorney had advised him of his “statutory and constitutional rights” to a jury trial and the “ramifications” of waiving those rights. At a hearing on May 22, 2014, the court confirmed Niemeyer intended to waive his right to a jury and proceed to a bench trial on the stipulated minutes of testimony. On August 5, 2014, the district court found Niemeyer guilty on all three
counts. 1 The court sentenced him to indeterminate prison terms of ten years on counts I and II and five years on count III; all th re e sentences were to run concurrently. Niemeyer now appeals.
II. Scope and Standard s of Review We review ineffective

- assistance

- of

- counsel claims de novo. State v. McNeal , 867 N.W.2d 91, 99 (Iowa 2015). We review challenges to the sufficiency of the evidence for correction of errors at law. State v. Robinson , 859 N.W.2d 464, 46 7 (Iowa 2015). Our scope of review from a criminal conviction is the same whether the factfinder is the

1 The court determined the State had not proven the enhancement for manufacturing or distribution within one

- thousand feet of a school under Iowa Code section 124.401A.5

court or a jury. State v. LaPointe , 418 N.W.2d 49, 51 (Iowa 1988)

. In reviewing the finding of guilt, we view the evidence in a light most favorable to the State. Id. We are bound by t he court’ s finding of guilt unless it is not supported by substa ntial evidence. Id. E vidence is substantial if it would convince a rational trier of fact the defendant is guilty beyond a reasonable doubt. Robinson , 8 59 N.W.2d at 467.
III. Analysis
A. Ineffective Assistance of Counsel Niemeyer’s first claim involves the performance of his trial counsel. He alleges his atto rney was constitutionally remiss in not challenging the adequacy of the court’s colloquy to ensure his jury

- trial waiver was knowing and voluntary. To succeed on his claim, Niemeyer must show (1) counsel failed to perform an essential duty and (2) prejudice resulted

. See Strickland v. Washington , 466 U.S. 668, 687 (1984) . Under the duty prong, we measure counsel’ s performance against the standard of a reasonably competent practitioner, presuming the attorney performed his duties competently. See S tate v. Clay , 824 N.W.2d 488,
495 (2012)

. To prove prejudice, Niemeyer must show “a reasonable pr obability
t hat, but for counsel’ s unprofessional errors, the result of the proceeding would have been different.” See Strickland , 466 U.S. at 694

. Niemeyer asked our supreme c ourt to retain this case , asserting the appeal raised

a n issue of first impression

— w hether a defendant agreeing to a trial on the minutes should be questioned regarding his waiver of his rights to confront and cross examine witnesses, to testify or not6

testify on his behalf, and to call his own witnesses through the use of subpoenas, if necessa ry. But the supreme court transferred the case to us. And we must follow its previous dictates. The supreme court has held “ a bench trial on a stipulated factual record is not the same as a guilty plea proceeding, and due process does not require the co urt to undertake a guilty plea colloquy prior to accepting a stipulated factual record .” State v. Sayre , 566 N.W.2d 193, 195 (Iowa 1997) (citing State v. Everett , 372 N.W.2d 235, 236 (Iowa 1985) )

. If a defendant is stipulating to a bench trial on the min utes, as opposed to pleading guilty, then the district court must complete three tasks: (1) verify the defendant has waived his right to a jury trial in accord with Iowa Rule of Criminal Procedure 2.17(1) ; (2) confirm the extent of the factual record to wh ich the parties are stipulating; and (3) “find the facts specially and on the record, separately stating its conclusion of law, and render ing an appropriate verdict ” as required by rule 2.17(2)

. Id. at 196

. The court satisfied all three requirements here

. First, t he court verified Niemeyer’s desire to waive the right to a jury trial, engaging in the colloquy outlined in State v. Liddell , 672 N.W.2d 805, 813

- 14 (Iowa 2003) and State v. Feregrino , 756 N.W.2d 700, 705 (Iowa 2008). Second, t he court confirm ed the parties were submitting the matter on the original and amended minutes of testimony. Niemeyer told the court he understood it was going to “make a decision about whether [he was] guilty or not guilty of each count in the case based upon written mat erials that are in the court file rather than on witness7

testimony.” And third, the district court issued detailed findings of fact and conclusions of law. Niemeyer’s counsel had no obligation to raise a meritless claim concerning the adequacy of his waiv er of jury trial and the voluntariness of his agreement to a stipulated trial on the minutes. See State v. Saxton , No. 14

- 0124, 2014 WL 7343522, at *3 (Iowa Ct. App. Dec. 24, 2014). Accordingly, we reject Niemeyer’s claim of ineffective assistance of cou nsel.
B. Sufficiency As a second issue, Niemeyer contests the sufficiency of the State’s proof that he possessed the marijuana with intent to deliver. Specifically, he challenges the evidence establishing intent.

“ Because it is difficult to prove intent by direct evidence, proof of intent usually consi sts of circumstantial evidence and the inferences that can be drawn from that evidence. ” State v. Grant , 722 N.W.2d 645, 647

- 48 (Iowa 2006)

. Police with experience in drug enforcement may provide evidence to a ssist the fact finder. Id. at 648. I ntent to deliver also may be inferred from “ the manner in which the drugs are packed, large amounts of unexplained cash, and the quantity of drugs possessed. ” Id. The district court decided the volume of baggies

— foun d in close proximity to a vacuum sealer and digital scale

— was consistent with Niemeyer’s “intent to weigh , divide, package, and preserve marijuana for sale.” The court also pointed to the cash in defendant’ s wallet and drug ledgers as evidence showing his intent to deliver.8

On appeal, Niemeyer argues the stipulated trial record holds no support for the court’s reference to drug ledge rs

. We disagree. The Waterloo Police Department’s Property Tag Summary Report, which was incorporated into the minutes of evidence, listed drug ledgers as being found with mail addressed to Niemeyer in a kitchen cabinet. When viewed in the light most favorable to the State, the totality of the evidence found in Niemeyer’s h ouse indicated more than marijuana possession for personal use. T he scope of the grow operation

— coupled with the packaging equipment, ledgers , and cash

— all illuminated Niemeyer’s intent to deliver. See State v. Adams , 554 N.W.2d 686, 692 (Iowa 1996) ( noting relatively large amount of cash carried by twenty
- one - year - old defendant ). We decline to disturb the conviction for possession with intent to deliver.
AFFIRMED.