IN THE COURT OF APPEALS OF IOWA No. 21

- 1163 F iled May 25, 2022
CLAY THOMAS PAULSON, Applicant

- Appellant,

vs. STATE OF IOWA, Respondent

- Appellee.

________________________________________________________________ Appeal from the Iowa District Court for Boone County, John R. Flynn , Judge.

Clay Paulson appeals the denial of his application for postconviction relief

. AFFIRMED.

Jesse A. Macro Jr. of Macro & Kozlowski, LLP, West Des Moines, for appellant. Thomas J. Miller, Attorney General, and Tyler J. Bulle r, Assistant Attorney General, for appellee State.

Considered by Bower, C.J., and Vaitheswaran and Chicchelly, JJ.2

VAITHESWARAN , Judge
. The State charged Clay Paulson with several crimes arising from a traffic stop in Boone, Iowa , and an inventory sear ch of a backpack in the vehicle. A jury found Paulson guilty of possession of a controlled substance with intent to deliver,
a tax
- stamp violation, and possession of a prescription drug without a prescription

. The court of appeals affirmed the findings of guilt as well as the district court ’ s conclusion that the probative value of certain text messages outweighed the prejudicial effect

. State v

. Paulson , No. 17

- 2097, 2018 WL 6706221 , at *1

– 2 (Iowa Ct. App. Dec. 19, 2018)

. The court preserved for postco nviction relief Paulson ’ s contention that the messages constituted inadmissible hearsay evidence. Id

. at *2. Paulson filed a po stconviction

- relief application alleging his trial attorney was ineffective (1) in failing to “ properly object to hearsay regarding ” the text
messages and properly preserv e the issue for appellate review and (2) in failing to

“ file a motion to suppress ” under State v

. Ingram , 914 N.W.2d 794 (Iowa 2018), on the ground that “ law enforcement searched a bag/backpack as part of an inventory search and did not first obtain a warrant

. ” T he postconviction court denied the application following an evidentiary hearing. On appeal, Pa ulson reprises the same two arguments. To preva il, he must show (1) deficient performance and (2) pre judice. See Strickland v

. Washington , 466 U.S. 668, 687 (1984). “ To establish the first prong, [he] must show [] counsel

‘ made errors so serious that counsel was not functioning as the “ counsel ” guaranteed the defendant by the Sixth Amendment. ’” State v

. Brown , 930 N.W.2d 840, 855 (Iowa 2019) (quoting Strickland , 466 U.S. at 687 ). To establish the second prong, he “ must prove by a reasonable probability that, but for counsel ’ s3

failure to perform an essential duty, the result of the proceeding would have been different. ” State v

. Booth

- Harris , 942 N.W.2d 562, 577 (Iowa 2020); accord State

v
. Boothby

, 951 N.W.2d 859, 865 (Iowa 2020) ( “ To meet the prejudice prong of his ineffective

- assistance claim, [the defendant] would have to show that without [the exhibits] , the jury would have had reasonable doubt about his guilt. ” ). Our review is de novo. See State v

. Doolin , 942 N.W.2d 500, 507 (Iowa 2020).
I
. Hearsay
– Text Messages Three of the four text message s Pa ulson challenges on appeal

— Exhibits 10, 11, and 14

— were drafted by a passenger in the vehicle

. At trial, an officer testified the exhibits colloquially referenced methamphetamine, money , and the drug ecstasy. The fourth challenged message

— Exhibit 12

— was a text from Pa ulson to the passenger stating they could “ drink sm o ke and blow line s

. ” The officer opined, “ B ased on the totality of everything, including the backpack, the messages and the prior interaction amongst them, it appeared that Mr. Paulson was engaged in sell ing various controlled substances. ” The trial court overruled objections to the exhibits without explicitly addressing defense counsel ’ s hearsay objection. For the following reasons, we conclude there is no reasonable probability that the outcome would h ave been different had counsel succeeded in having the text messages excluded on hearsay grounds

. First, the district court instructed the jury to disregard references to methamphetamine. The instruction was as follows: “ There was testimony of methamph etamine

. . . . The defendant in this case is not charged with anything related to methamphetamine, so you are instructed not to consider that testimony against the defendant or to use it against the defendant in your deliberations in the4

case. ” Although t he instruction preceded the officer ’ s summary of the text
message containing a methamphetamine reference , it was generic enough to apprise the jury that methamphetamine use, delivery, or intent to deliver was not an issue. See State v. Hanes , 790 N.W.2d 545, 552 (Iowa 2010) (“We presume juries follow the court’s instructions.”). Second, the text messages and the officer ’ s characterization of their import

were cumulative of duly admitted testimony establishing Pa ulson ’ s intent to deliver. A s noted on d irect appeal, Paulson was seated in the front passenger seat of the vehicle that was stopped. Paulson , 2018 WL 6706221 , at *1

. Officers seized a backpack in th at vicinity. Id

. 1 At trial, the Boone police chief testified to the contents of the backpack , which included “ a sealed storage container ” with “ some other pills that were individually packaged into small baggies. ” An officer explained why the baggies were important. In his words, “ t he way I see narcotics packaged are generally in those small yo u call them Ziploc baggies

. . . . ” He stated the baggies appeared to be “ [n]ew. ” He also testified that 176 pills were found in the backpack. Third, although one of the messages referred to ecstasy , which was not among the drugs found in the backpack , Pa ulson ’ s attorney vigorously cross

examined the officer on this point, mitigat ing the prejudicial effect of the reference.

1 In an appeal from separate convictions for suborning perjury and solici tation to suborn perjury, the court of appeals concluded, “ [T] he State failed to prove the woman ’ s statement to the police officer concerning Paulson ’ s possession of a starred backpack was admissible under the forfeiture

- by

- wrongdoing exception to the hearsay rule. Because the evidence was inadmissible, we reverse and remand for a new trial

. ” State v

. Paulson , No. 17

- 1668, 2019 WL 1486395 , at *5 (Iowa Ct. App. Apr. 3, 2019).5

Because Pa ulson did not establish that he was prejudiced by counsel ’ s failure to obtain a ruling on his hearsay objection , we aff irm the postconviction
court ’ s denial of his ineffective

- assistance

- of

- counsel claim

. II
. Failure to File Suppression Motion
– S tate v
. Ingram T he supreme court addressed the constitutionality of warrantless inventory searches i n State v

. Ingram , 914 N.W.2d 794 (Iowa 2018)

. The court held that

“ [e]ven if . . . the police were entitled to seize the car, ” “ absent a knowing and voluntary consent, ” a search of a “ bag

— a closed container ” found in the car “ was impermissible. ” Ingram , 914 N.W.2d at 820 . Th e court instructed:

Absent specific consent to search them,

. . . police must inventory closed containers left behind in the vehicle as a unit

. . . . Specifically, the police should advise the owner or operator of the options to impoundment; personal it ems may be retrieved from the vehicle; and if the vehicle is impounded, containers found within the vehicle will not be opened but stored for safekeeping as a unit unless the owner or operator directs otherwise. Id . (internal citations omitted). On appe al, Paulson contends “ [t]he warrantless search ” of his backpack,

“ no matter what title given to it by the State of Iowa, violated both federal and state constitutional law. ” His broad assertion that the search fell outside any “ of the narrowly drawn exceptions to the warrant requirement ” was not decided by the postconviction court. The court limited its discussion to Ingram

. W e will do the

same. The postconviction court concluded :

At the time of Mr. Paulson ’ s jury trial , . . . the Boone Police Department ’ s impoundment policy and inventory policy, including searches of containers within a vehicle, was permissible under Iowa law. Trial counsel did not have to predict the future to be effective and he certainly did not have the luxury of a crystal ball to foresee6 the titanic shift in the law at the time of his representation of Mr. Paulson that was months away

. ( C itations omitted

. ) The court ’ s reasoning find s support in the testimony of Pa ulson ’ s experienced trial attorney, who stated he “ did no t see that as a legal issue since it was common practice up until Ingram

. . . to allow evidence in an inventory search to come in as long as they could lay proper foundation ” and “ it

was

. . . settled law or fairly settled that stuff found in inventory ” w as “ admissible. ” On our de novo review, we fully concur in the court ’ s conclusion. See Doolin , 942 N.W.2d at 507 (stating “ counsel will not be found ineffective for a lack of

‘ clairvoyance ’” ( quoting Millam v

. State , 745 N.W.2d 719, 722 (Iowa 2008) ) ) ; Br own , 930 N.W.2d at 855 ( noting c ounsel is “ not require d to predict changes in the law” ). We affirm the postconviction court ’ s denial of P a ulson ’ s postconviction

relief application. AFFIRMED.