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IN THE COURT OF APPEALS OF IOWA No. 1-077 / 10-0432 Filed March 30, 2011

STATE OF IOWA, Plaintiff-Appellee, vs. JOHN FITZGERALD SYKES, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.

A defendant appeals his judgment and sentence for possession of marijuana with intent to distribute, contending that counsel was ineffective for failing to properly challenge the sufficiency of the evidence to support the charge. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Robert P. Ranschau, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brook Jacobsen, Assistant County Attorney, for appellee.

Considered by Vaitheswaran, P.J., and Eisenhauer and Danilson, JJ. Tabor, J., takes no part.

2 VAITHESWARAN, P.J. John Fitzgerald Sykes appeals his judgment and sentence for possession of marijuana with intent to distribute. He contends his trial attorney was

ineffective in failing to properly challenge the sufficiency of the evidence supporting the finding of guilt. I. Background Facts and Proceedings Early one morning, a Waterloo police officer on routine patrol noticed a vehicle slowly passing through a previously drug-ridden block of Waterloo. The officer stopped the vehicle for an equipment violation. As he made the stop, he noticed the front seat passenger shift in his seat, reach underneath him, and bend over slightly. The officer identified the passenger as Sykes. The officer removed Sykes from the vehicle and patted him down. He felt what he thought was narcotics packaging in Sykess back p ocket. As Sykes pulled his wallet out of that pocket, a baggie also came out. Sykes quickly

stuffed the baggie back in. Later, the officer retrieved several empty baggies from that pocket. Meanwhile, the driver consented to a search of the vehicle, which uncovered four bags of marijuana totaling 26.9 grams. The drugs were found underneath the front passenger floor mat. The State charged Sykes with possession of marijuana with intent to deliver as a habitual offender. At the close of the States evidence, Sykess attorney made a general motion for judgment of acquittal, which the district court overruled. A jury subsequently found Sykes guilty. Sykes appealed following imposition of sentence.

3 II. Analysis Sykes contends his attorney was ineffective in failing to make a detailed challenge to the sufficiency of the evidence supporting the jurys finding of guilt. See State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996) (analyzing a defendants challenge to the sufficiency of the evidence under an ineffective-assistance-ofcounsel rubric when a general motion for judgment of acquittal was inadequate to preserve error on the sufficiency of the evidence claim). "A claim of ineffective assistance of trial counsel based on the failure of counsel to raise a claim of insufficient evidence to support a conviction is a matter that normally can be decided on direct appeal." State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004). If the record fails to reveal substantial evidence to support the convictions, counsel was ineffective for failing to properly raise the issue and prejudice resulted. On the other hand, if the record reveals substantial evidence, counsels failure to raise the claim of error could not be prejudicial. Id. Our review is de novo. Id. at 615. The jury was instructed that the State would have to prove the following elements of possession with intent to deliver: 1. On or about the 8th day of September, 2009, the defendant knowingly possessed a controlled substance; Marijuana. 2. The defendant knew that the substance he possessed was a controlled substance; Marijuana. 3. The defendant possessed the substance with the intent to deliver. See Iowa Code

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