IN THE SUPREME COURT OF IOWA

No. 10–0828

Filed September 23, 2011

STATE OF IOWA,

Appellee,

vs.

ROBIN EUGENE BRUBAKER,

Appellant.

Appeal from the Iowa District Court for Woodbury County, John C. 

Nelson, Judge.

Appeal from judgment of conviction and sentence for unlawful 

possession of a prescription drug in violation of Iowa Code section 

155A.21(1) (2009). REVERSED AND CASE REMANDED WITH 

INSTRUCTIONS.

Mark C. Smith, State Appellate Defender, and Dennis D. 

Hendrickson, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Bridget A. Chambers, 

Assistant Attorney General, Patrick A. Jennings, County Attorney, and 

Bobbier A. Johnson, Assistant County Attorney, for appellee.
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WIGGINS, Justice.

A jury found the defendant guilty of operating while intoxicated

(OWI), fourth offense, in violation of Iowa Code section 321J.2 (2009) and 

unlawful possession of a prescription drug in violation of Iowa Code 

section 155A.21(1). On appeal, the defendant contends that the district 

court erred by denying his motion to suppress evidence found in his car 

when officers searched it after his arrest and that his trial counsel was 

ineffective for failing to object specifically to the sufficiency of evidence 

offered by the State regarding the charge of unlawful possession of a 

prescription drug. On our de novo review of the record, we find that trial 

counsel was ineffective and that, if he made the proper objection 

regarding the sufficiency of evidence, the district court would have 

dismissed the unlawful possession charge. Consequently, we reverse the 

judgment for unlawful possession of a prescription drug and remand the 

case for dismissal of that charge. 

I. Background Facts and Proceedings. 

William Nice is a K-9 officer with the Sioux City Police Department. 

Nice has been with the Sioux City police approximately seven years. His 

normal duties include routine patrol, calls for service, and traffic 

enforcement. On January 16, 2009, Nice was working the second watch, 

from 2:30 to 10:30 p.m. Just before 9:00 p.m., Nice observed a red 

Buick LeSabre straddling the center turn lane at the intersection of 14th

and Jackson Streets. Robin Brubaker was the driver of the vehicle. 

After Nice maneuvered his marked patrol car behind the LeSabre, 

Brubaker immediately turned it into the parking lot of a convenience 

store. Nice continued on with his patrol. 

A few minutes later, Nice observed the same LeSabre traveling 

north on Nebraska Street. Once again, Nice maneuvered his patrol car 
3

behind the LeSabre, and, once again, Brubaker immediately turned into 

a parking lot. Brubaker activated his turn signal, but only after 

initiating the turn. Brubaker parked in the lot near the north end of a

grocery store, but did not exit the vehicle. Nice continued on, but parked 

in a location where he could observe the LeSabre. 

It was now approximately 9:10 p.m., and the grocery store was 

closed. However, the store’s lights were still on, and employees were still 

inside. Nice determined that the LeSabre’s engine was still running 

because he could observe exhaust coming from the tailpipe due to the 

cold weather. After a few minutes the exhaust stopped. Brubaker 

remained in the vehicle.

Nice thought it was strange someone would sit in a vehicle that 

was not running, given the extreme cold. At the suppression hearing, 

Nice acknowledged that Brubaker could have been waiting for an 

employee getting off work or that he was trying to conserve gasoline. 

Further, Nice stated that Brubaker was not engaged in any criminal 

activity at the time and that there was no specific criminal activity afoot. 

Nevertheless, Nice decided to approach Brubaker as a casual encounter 

to see why Brubaker was acting the way he was, if he had any good 

reason for being there, if there was anything wrong, or if he was lost. 

Additionally, Nice was concerned that Brubaker could have been having 

a medical problem. Nice also considered that he had witnessed 

Brubaker commit two minor traffic infractions. In short, the totality of 

everything that Nice observed up to that point prompted him to approach 

the vehicle.

As he drove his patrol car into the store parking lot, Nice did not 

activate his lights, but turned on the camera mounted in his patrol car 

and parked at an angle behind the LeSabre. He testified that he did not 
4

consider this a traffic stop. Nice, in full police uniform, approached the 

driver’s side of the LeSabre. Upon reaching the driver’s door of the 

LeSabre, he observed Brubaker reading a brochure. Nice tapped on the 

window, and Brubaker opened the car door. 

Nice greeted Brubaker and asked him how he was doing. Nice 

reported an overwhelming odor of alcohol coming from inside the vehicle. 

Nice further queried Brubaker as to where he was coming from, if he was 

drinking, and what was he doing. While doing so, Nice observed that 

Brubaker slurred his speech and had bloodshot, watery eyes. Less than 

thirty seconds after his initial contact with Brubaker, Nice called for the 

assistance of an Alcohol Safety Action Program (ASAP) officer to conduct 

field sobriety tests. 

Sioux City police officer Angela Kolker arrived at the parking lot at 

9:12 p.m. Kolker has been a police officer for thirteen years and is

trained in OWI detection, recognition, field sobriety tests, and implied 

consent. Kolker approached the LeSabre from the passenger’s side while 

Brubaker was still sitting in his car, talking to Nice. From her vantage 

point, Kolker observed an open twelve-pack of beer on the floorboard in 

the rear of the vehicle. 

Nice asked Brubaker to surrender the keys to the vehicle. Instead, 

Brubaker picked up the keys from the passenger seat and put them in 

his pocket. Nice denied Brubaker’s request to leave and advised 

Brubaker of his Miranda rights.

Kolker informed Nice that there was a fifteen-minute observation 

period required prior to administering a preliminary breath test and that 

during that time nothing could go into Brubaker’s mouth, as it could 

cause a false reading. Nice asked Brubaker if he had anything in his 

mouth. Brubaker then produced a piece of candy and began to unwrap 
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it. Nice advised Brubaker not to put the candy into his mouth. 

Defiantly, Brubaker put the candy into his mouth. 

Nice then ordered Brubaker out of the car. Brubaker refused and 

grabbed the steering wheel. Nice and Kolker attempted, unsuccessfully, 

to physically remove Brubaker from the LeSabre. Utilizing a Taser, Nice 

and Kolker forcibly removed Brubaker from the vehicle. Out of the car,

Brubaker continued to be noncompliant. Eventually, Nice and Kolker 

subdued Brubaker and took him into custody. They then moved 

Brubaker to a squad car, and another officer transported Brubaker to 

the jail. Brubaker was arrested for failure to obey and subsequently for 

operating a motor vehicle while intoxicated. 

At trial, Kolker testified that she observed Brubaker for 

approximately fifteen to twenty minutes during the encounter. Kolker 

believed that Brubaker was under the influence of something based on, 

among other things, Brubaker’s slow movements. For example, when 

Nice asked for the keys, it seemed Brubaker had forgotten what he was 

going to do with them once he found them. Kolker further testified that 

Brubaker showed impaired decision making. The district court allowed 

Kolker’s opinion over defense counsel’s objection finding that she had 

been trained to recognize the signs of intoxication and that she had dealt 

with intoxicated people many times. 

Once Brubaker was removed from the scene, Kolker and Nice 

searched Brubaker’s car, including under the rear seat cushion and in 

the trunk. They did not have a search warrant for the vehicle, but 

believed it to be justified as a search incident to the arrest. The interior 

of Brubaker’s car was very cluttered. There were several containers of 

beer, some of which were open. Additionally, Kolker and Nice searched a 
6

large duffel bag containing clothes and toiletries. Inside a sock, Kolker 

discovered a scale. 

As to the search under the rear seat, Kolker testified:

And when we moved the clothes and then the seat for 

the - - the back seat is just one big cushion that you can - -

that you can take - - lift out and move. And underneath 

there, there was a - - first thing that we found was an 

eyeglasses case, like a soft one, that had - - I think it was 

soft, that had syringes in it, and there was a - - like a 

prescription pill bottle, one of those plastic brown bottles, 

didn’t have a label printed stuck to it, but it was a - - like a 

brown prescription bottle with some pills in it. And then 

there was a second eyeglasses case that had more syringes 

in it. And the last thing was a glass meth pipe that had 

some like some - - like steel wool stuff in it - - tucked in it.

Kelli Bodwell is a criminalist with the Criminalist Laboratory of the 

Iowa Division of Criminal Investigation. As part of her job, Bodwell 

analyzes physical evidence in criminal cases, writes reports on the 

findings, and testifies in court, if necessary. Bodwell examined the fiftyone yellow pills found inside the brown prescription bottle taken from 

Brubaker’s vehicle. 

Bodwell’s report stated the pills were “consistent in appearance 

with a pharmaceutical preparation containing [C]lonazepam.” Bodwell 

also testified that Clonazepam was a Schedule IV controlled substance, 

requiring a prescription. 

The jury found Brubaker guilty of operating while intoxicated and 

unlawful possession of a prescription drug. The district court entered 

judgment and imposed sentences for the two convictions. Brubaker 

timely filed his notice of appeal. 

Brubaker testified that his car had been previously owned by three 

or four other people. He further testified that he frequently had 

passengers in the back seat of his car. Brubaker denied that he was 
7

intoxicated and testified that he did not cooperate with officers because 

he was upset with what he believed was bullying by the officer. He 

stated that he was not an intravenous drug user and denied knowing 

anything about the pills found in his car. Likewise, he denied knowing 

how the syringes and pipe got into his vehicle. 

II. Issues.

Brubaker asserts that the district court erred in denying his 

motion to suppress the pills found in his vehicle at the time of his arrest. 

Additionally, Brubaker contends that his trial counsel was ineffective 

because he failed to argue specifically in his motion for judgment of 

acquittal that there was insufficient evidence to prove that the substance

he possessed was Clonazepam. The issue involving the sufficiency of

evidence is dispositive of this appeal. Therefore, we will not address any 

other issue presented.

III. Preservation of Error.

At the close of the State’s case, trial counsel for Brubaker moved 

for a directed verdict of acquittal alleging broadly that the State failed to 

generate a jury question and prove the elements of the offenses as 

charged. See Iowa R. Crim. P. 2.19(8). We have held, “To preserve error 

on a claim of insufficient evidence for appellate review in a criminal case, 

the defendant must make a motion for judgment of acquittal at trial that 

identifies the specific grounds raised on appeal.” State v. Truesdell, 679 

N.W.2d 611, 615 (Iowa 2004). The motion for directed verdict of 

acquittal by Brubaker’s trial counsel lacked any specific grounds, and 

thus, the error was not preserved. 

Failure of trial counsel to preserve error at trial can support an 

ineffective-assistance-of-counsel claim. Id. at 615–16. “Ineffectiveassistance-of-counsel claims have their basis in the Sixth Amendment to 
8

the United States Constitution.” State v. Vance, 790 N.W.2d 775, 785 

(Iowa 2010). A defendant may raise the ineffective assistance claim on 

direct appeal if he or she has reasonable grounds to believe the record is 

adequate to address the claim on direct appeal. Iowa Code § 814.7(2). 

We acknowledge that ineffective-assistance-of-counsel claims are 

normally considered in postconviction relief proceedings. State v.

Soboroff, 798 N.W.2d 1, 8 (Iowa 2011). A primary reason for doing so is 

to ensure development of an adequate record to allow the attorney 

charged to respond to the defendant’s claims. State v. Coil, 264 N.W.2d 

293, 296 (Iowa 1978). However, “[p]reserving ineffective-assistance-ofcounsel claims that can be resolved on direct appeal wastes time and 

resources.” Truesdell, 679 N.W.2d at 616. Having reviewed the record in 

the case before us, we conclude that the record is sufficient to address a 

claim of ineffective assistance of counsel, and this claim should not be 

preserved for a postconviction relief proceeding. 

IV. Scope of Review.

A claim of ineffective assistance of counsel is reviewed de novo. Id.

at 615. We review sufficiency-of-the-evidence claims for correction of 

errors at law. State v. Webb, 648 N.W.2d 72, 75 (Iowa 2002). We will 

uphold a verdict if it is supported by substantial evidence. Id. at 75. 

When a rational fact finder is convinced by the evidence that the 

defendant is guilty beyond a reasonable doubt, the evidence is 

substantial. Id. at 75–76. “The evidence is reviewed in the light most 

favorable to the State, and all of the evidence presented at trial, not just 

evidence that supports the verdict, is considered.” State v. Kemp, 688 

N.W.2d 785, 789 (Iowa 2004). However, it is the State’s “burden to prove 

every fact necessary to constitute the crime with which the defendant is 
9

charged, and the evidence presented must raise a fair inference of guilt 

and do more than create speculation, suspicion, or conjecture.” Id.

V. Ineffective Assistance of Counsel.

A. Generally. To establish an ineffective-assistance-of-counsel 

claim, a defendant must prove by a preponderance of the evidence: 

(1) trial counsel failed to perform an essential duty, and (2) prejudice 

resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 

2064, 80 L. Ed. 2d 674, 693 (1984). “Ineffective assistance under 

Strickland is deficient performance by counsel resulting in prejudice, 

with performance being measured against an ‘objective standard of 

reasonableness,’ ‘under prevailing professional norms.’ ” State v. 

Maxwell, 743 N.W.2d 185, 195 (Iowa 2006) (quoting Rompilla v. Beard,

545 U.S. 374, 380, 125 S. Ct. 2456, 2462, 162 L. Ed. 2d 360, 371 (2005) 

(internal citations omitted)) (internal quotation marks omitted). 

B. Failure to Perform an Essential Duty. “[C]laims of ineffective 

assistance involving tactical or strategic decisions of counsel must be 

examined in light of all the circumstances to ascertain whether the 

actions were a product of tactics or inattention to the responsibilities of 

an attorney.” Ledezma v. State, 626 N.W.2d 134, 143 (Iowa 2001). “We 

begin with the presumption that the attorney performed competently” 

and “avoid second-guessing and hindsight.” Id. (internal citations 

omitted). We will not find counsel incompetent for failing to pursue a 

meritless issue. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999).

1. Meritless issue. Brubaker’s trial attorney performed 

competently if it would have been meritless to argue specifically in his 

motion for judgment of acquittal that there was insufficient evidence to 

prove the substance Brubaker possessed was Clonazepam. Thus, we 

must first determine the merits of such an argument.
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Iowa Code section 155A.21(1) provides, “A person found in 

possession of a drug or device limited to dispensation by prescription, 

unless the drug or device was so lawfully dispensed, commits a serious 

misdemeanor.” Iowa Code § 155A.21(1). To be convicted, the following 

three elements must be established: (1) Brubaker was found in 

possession, (2) of a prescription drug, and (3) the drug was not lawfully 

dispensed to him. Brubaker insists the State failed to establish beyond a 

reasonable doubt that the fifty-one pills found in his vehicle alleged to be 

Clonazepam, were, in fact, Clonazepam. 

On direct examination the State solicited the following testimony 

from Bodwell:

Q. Miss Bodwell, what is your occupation? A. I’m a 

criminalist with the Iowa Division of Criminal Investigation 

Laboratory.

. . . .

Q. As part of your duties, do you analyze prescription drugs 

too? A. I will look at prescription drugs and analyze them 

as necessary, yes.

Q. And how do you do this? A. If it is a Schedule III or 

below controlled substance, the normal procedure is to look 

at it visually, then compare it to reference materials.

. . . . 

Q. Thank you. Miss Bodwell, do you recognize this? A. 

Yes, I do.

Q. And what is it? A. State’s Exhibit Number 4 is a copy of 

the report that I prepared, April 22, 2009, concerning this 

case.

. . . . 

Q. And what does this report indicate? A. [F]ifty-one yellow 

tablets [that are] consistent with the appearance of a 

pharmaceutical, Clonazepam, a Schedule IV controlled 

substance.
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Q. And is a prescription required for Clonazepam? A. Yes, 

it is.

Q. And how do you know this? A. Per the reference 

material that I looked up to find what this drug was; it 

indicated that it was a prescription drug.

Bodwell’s report reads as follows: “FINDINGS: consistent in appearance

with a pharmaceutical preparation containing clonazepam, Schedule IV.” 

(Emphasis added.) The record lacks any other evidence regarding the 

positive identification of the fifty-one yellow pills found in Brubaker’s 

vehicle.

We have always recognized that, for a person to be convicted of a 

drug offense, the State is not required to test the purported drug. In the 

Interest of C.T., 521 N.W.2d 754, 757 (Iowa 1994). The finder of fact is 

free to use circumstantial evidence to find that the substance is an illegal 

drug. Id. The reason for this rule is that circumstantial evidence is not 

inferior to direct evidence. State v. Blair, 347 N.W.2d 416, 421 (Iowa 

1984). In a given case, circumstantial evidence may be more persuasive 

than direct evidence. State v. Stamper, 195 N.W.2d 110, 111 (Iowa 

1972). Circumstantial evidence is equally probative as direct evidence 

for the State to use to prove a defendant guilty beyond a reasonable 

doubt. State v. O'Connell, 275 N.W.2d 197, 205 (Iowa 1979).

The question we must decide is whether a rational trier of fact 

could have found that all essential elements of the crime were 

established beyond a reasonable doubt based on the evidence produced 

at trial. State v. Robinson, 288 N.W.2d 337, 339 (Iowa 1980). 

“Inferences drawn from the evidence must raise a fair inference of guilt 

on each essential element . . . .” Truesdell, 679 N.W.2d at 618. An 

inference must do more than “create speculation, suspicion, or 

conjecture.” Webb, 648 N.W.2d at 76. Evidence that allows two or more 
12

inferences to be drawn, without more, is insufficient to support guilt. 

Truesdell, 679 N.W.2d at 618–19. 

The State chose not to have the pills tested or call a qualified 

expert witness to testify that the pills were, in fact, Clonazepam. Thus, 

there is no direct evidence that the pills found in Brubaker’s vehicle were 

a prescription drug. Instead, the State relied on the testimony of a 

criminalist who compared the pills to a picture of Clonazepam. After 

making the comparison, the criminalist was only able to say the pill was 

consistent in appearance with a pharmaceutical preparation containing 

Clonazepam. Just because a pill looks like Clonazepam does not mean it

is Clonazepam.

The criminalist also testified that Clonazepam was a prescription 

drug by looking in the same reference material that led her to conclude 

the pill was consistent in appearance with Clonazepam. This testimony, 

alone or with her other testimony, does not establish that the pills were 

Clonazepam. 

One court listed six factors a fact finder could use to determine 

whether a substance is an illegal drug in lieu of expert testimony. United 

States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976). 

Such circumstantial proof may include evidence of the 

physical appearance of the substance involved in the 

transaction, evidence that the substance produced the 

expected effects when sampled by someone familiar with the 

illicit drug, evidence that the substance was used in the 

same manner as the illicit drug, testimony that a high price 

was paid in cash for the substance, evidence that 

transactions involving the substance were carried on with 

secrecy or deviousness, and evidence that the substance was 

called by the name of the illegal narcotic by the defendant or 

others in his presence.

Id. 
13

Other courts have listed additional circumstantial evidence to aid 

the state in its burden to prove a substance is an illegal drug. These 

factors include whether ingestion of the substance caused a change in 

the defendant’s behavior, Chancey v. State, 349 S.E.2d 717, 725 (Ga. 

1986); whether the defendant referred to the substance as “very good 

stuff,” Swain v. State, 805 P.2d 684, 686 (Okla. Crim. App. 1991); and 

whether the known odor of the substance identified it as an illegal drug, 

State v. Salois, 766 P.2d 1306, 1310 (Mont. 1988). These factors are not 

exclusive, and the state is not required to prove all of these 

circumstances were present to sustain a conviction. Rather, we look at 

these circumstances in light of the evidence produced at trial to 

determine whether the state produced sufficient evidence to support the 

proposition that the substance was an illegal substance when expert 

testimony did not identify the substance as illegal.

Applying this standard, we find the jury was left to speculate as to 

whether the pills were Clonazepam and to rely upon conjecture to reach 

a verdict of guilt. We reach this conclusion for a number of reasons. 

First, although the criminalist testified that the pills appeared to be 

Clonazepam, an examination of the pills reveals that they are similar in 

size, shape, and consistency to aspirin and other over-the-counter drugs 

readily available without a prescription. Second, even though the officers 

found the pills in a generic pill bottle, the bottle contained no label or 

other indication of the identity of its contents. Many people use old 

prescription bottles to store items, including pills. Third, although the 

officers found the pills with a syringe and a glass pipe, there is no 

evidence that the syringe or pipe found in the car had anything to do 

with illegal drug use. The State did not put on any testimony that a 

person could crush, dissolve, and use Clonazepam by smoking it or 
14

injecting it into his or her body. The fact that the pills appear to be 

Clonazepam and that the officers found them under the back seat is 

insufficient to establish they were, in fact, Clonazepam. 

The testimony presented at trial only indicated that a criminalist,

whose training or prior experience was unknown, compared the pills to 

reference materials and, after doing so, could only state that the pills 

were “consistent in appearance with a pharmaceutical preparation 

containing [C]lonazepam.” The criminalist did not specify that the pills 

were Clonazepam, nor does she explain how she reached her conclusion 

that the pills were consistent in appearance with a pharmaceutical 

preparation containing Clonazepam. Under this record, the criminalist’s 

testimony is not sufficient to allow the jury to make a finding the pills 

were, in fact, Clonazepam without speculating that the pills were 

Clonazepam. Consequently, if trial counsel had made the proper motion 

for acquittal based upon the State’s failure to provide sufficient evidence 

to support the necessary element of the crime that the pills were 

Clonazepam, the court would have sustained the motion.

2. Trial strategy. “Miscalculated trial strategies and mere mistakes 

in judgment normally do not rise to the level of ineffective assistance of 

counsel.” Ledezma, 626 N.W.2d at 143. “Trial counsel’s performance is 

measured objectively by determining whether counsel’s assistance was 

reasonable, under prevailing professional norms, considering all the 

circumstances.” State v. Lyman, 776 N.W.2d 865, 878 (Iowa 2010). The 

Supreme Court indicates the prevailing norms of practice are reflected in 

the American Bar Association standards and like documents. Strickland, 

466 U.S. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. 

Our Code of Professional Responsibility for Lawyers provides, “A 

lawyer shall provide competent representation to a client. Competent 
15

representation requires the legal knowledge, skill, thoroughness, and 

preparation reasonably necessary for the representation.” Iowa R. Prof’l 

Conduct 32:1.1. It is well-settled law that a motion for judgment of 

acquittal must specify the grounds for acquittal. Truesdell, 679 N.W.2d 

at 615. Failure to make a proper motion for judgment of acquittal at trial 

identifying the specific grounds for the motion is not a trial strategy. 

Therefore, Brubaker’s trial counsel failed to perform an essential duty.

C. Resulting Prejudice. In order to prove prejudice resulted from 

trial counsel’s failure to perform an essential duty, Brubaker must 

establish “a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” 

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. 

Brubaker “need only show that the probability of a different result is 

‘sufficient to undermine confidence in the outcome.’ ” State v. Palmer, 

791 N.W.2d 840, 850 (Iowa 2010) (quoting State v. Graves, 668 N.W.2d 

860, 882 (Iowa 2003)) (internal quotation marks omitted).

Having found that the district court would have sustained trial 

counsel’s proper objection, Brubaker was prejudiced by his trial 

counsel’s failure to object to the sufficiency of evidence and move for 

judgment of acquittal citing this specific reason. Therefore, Brubaker’s 

trial counsel was ineffective as a matter of law. 

VI. Disposition.

Had Brubaker’s trial counsel made the proper objection, the 

district court would have found the State failed to establish sufficient 

evidence to support the conviction of guilt under Iowa Code section 

155A.21(1). Therefore, we reverse the judgment for unlawful possession 

of a prescription drug and remand the case for dismissal of that charge. 

REVERSED AND CASE REMANDED WITH INSTRUCTIONS.