State of Iowa v. Darrien Darvin Irving

IN THE COURT OF APPEALS OF IOWA

No. 21-1839
Filed February 8, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

DARRIEN DARVIN IRVING,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, John Telleen, Judge.

A defendant appeals his convictions for drug-related offenses and

possession of a firearm by prohibited person. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.

Considered by Tabor, P.J., and Schumacher and Chicchelly, JJ.
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TABOR, Presiding Judge.

After a three-day trial, a jury convicted Darrien Irving of possessing crack

cocaine with the intent to deliver, failing to affix a drug tax stamp, and possessing

a firearm as a felon. On appeal, Irving claims the State presented insufficient

evidence for his drug-related convictions. He also contends the district court

should have ordered a competency hearing.

Viewing the record in the light most favorable to the verdicts, we find

substantial evidence that Irving knowingly possessed crack cocaine and intended

to deliver it. And the record does not reveal that a reasonable person would have

doubted Irving’s competence to stand trial or be sentenced. Thus, we affirm the

judgments and convictions.

I. Facts and Prior Proceedings

Driving a marked patrol car in the early morning hours, Davenport police

detective Robert Farra noticed a Pontiac Grand Am with no license plates. As

Farra followed the Grand Am, it accelerated, running a stop sign. While

accelerating, the driver hit a bump in the road and lost control, crashing into a

parked truck. Farra stopped his patrol car and activated its overhead lights.

Meanwhile, the Grand Am’s driver, the only occupant, crawled out the

passenger side. And as he did, he reached back toward the driver’s side

floorboard. Farra twice ordered the driver to “show me your hands.” But the driver

looked up and ignored the commands. Instead, the driver fled on foot. Farra

pursued the suspect at first but soon lost sight of him. Investigators eventually

found a wallet among tall weeds on the driver’s retreat route. A temporary driver’s
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license inside was issued to Irving. Likewise, the wallet held Irving’s auto

insurance card, social security card, and a MediaCom bill.1

When Farra returned to the crashed Grand Am, he spotted a .40 caliber

handgun and an LG Tracfone on the driver’s side floorboard. He then got search

warrants for the Grand Am and the phone. During the warranted search of the car

later that day, the detective found a clear plastic bag—tied at the top—inside a

compartment in the center console near the dashboard. The bag contained

17.91 grams of crack cocaine. It did not have a tax stamp. Investigators submitted

both the bag containing the crack cocaine and the handgun for fingerprinting. But

no identifiable prints were found.

In a second warranted search, Farra seized items from the glove box—

including a dental appointment card for Darrien Irving. Also in the glove box were

papers with different first names: “Dadon Irving” on a dry-cleaning claim tag and

“Darvon Irving” on an auto center receipt. The address on the auto center receipt

matched the address on Darrien Irving’s driver’s license.

An extraction of data from the Tracfone found many text messages

addressing “Darrien.” Davenport Police sergeant Ann Sievert, who has experience

and training in narcotics enforcement, testified that many messages contained

veiled references to the price and amount of crack cocaine sales.

The State charged Irving with possession with intent to deliver the crack

cocaine in violation of Iowa Code section 124.401(1)(c)(3) (2020), failure to affix a

1 When Farra later used the name and birthdate on the identification to access a
photograph, he confirmed that Irving was the individual he saw running away from
the Grand Am.
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drug tax stamp in violation of section 453B.12, and being a felon in possession of

a firearm in violation of section 724.26(1). The State also gave notice of sentencing

enhancements. A jury found him guilty of all three counts. He waived a jury trial

on his habitual offender status. And the district court found that he was a habitual

offender under Iowa Code sections 902.8 and 902.9. The court sentenced him to

concurrent indeterminate prison terms totaling thirty years, with a mandatory

minimum of six years before he is eligible for parole.

II. Scope and Standards of Review

We review Irving’s sufficiency-of-the-evidence claims for correction of legal

error. See State v. Crawford, 974 N.W.2d 510, 516 (Iowa 2022). We consider the

evidence “in the light most favorable to the State,” allowing for all reasonable

inferences it will support. State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). If

a rational jury could find guilt beyond a reasonable doubt, we affirm. Id. While we

consider all evidence—exculpatory and inculpatory alike—we are mindful that the

jury is “free to reject certain evidence, and credit other evidence.” Id. (citation

omitted).

We review his competency challenge de novo. See State v. Einfeldt, 914

N.W.2d 773, 778 (Iowa 2018).

III. Analysis

A. Substantial Evidence

Irving claims the State failed to offer adequate proof for his two drug-related

convictions: possession of crack cocaine with the intent to deliver and failure to
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affix a drug tax stamp.2 He contends the State did not show he knowingly

possessed the crack cocaine and also failed to prove he had the intent to deliver.

Possession. To convict on a narcotics offense, the State may prove either

actual or constructive possession. State v. Jones, 967 N.W.2d 336, 341 (Iowa

2021). Actual possession is “direct physical control” of the controlled substance.

Id. The evidence shows actual possession when investigators find drugs on the

suspect’s person or the record shows that the suspect had actual possession of

the drugs “at one time.” Id. (citation omitted). Constructive possession is

“knowledge of the presence of the controlled substance” coupled with “the

authority or right to maintain control of it.” State v. Reed, 875 N.W.2d 693, 706

(Iowa 2016) (citation omitted). But evidence showing the defendant had “access

to a place where narcotics are found” is not enough alone to show either form of

possession. State v. Reeves, 209 N.W.2d 18, 22 (Iowa 1973).

The State can prove constructive possession by indirect evidence, including

the suspect’s incriminating statements and actions, their fingerprints, and their

proximity to the drugs. See State v. Webb, 648 N.W.2d 72, 79 (Iowa 2002). When,

as here, investigators search a car, a factfinder may consider whether: (1) the

drugs were in plain view, (2) the drugs were with the suspect’s personal effects,

2 For possession with intent, the State needed to prove:
1. On or about the 15th day of October, 2020, [Irving]
knowingly possessed crack cocaine, a controlled substance.
2. [Irving] knew that the substance he possessed was crack
cocaine.
3. [Irving] possessed the substance with the intent to deliver
the controlled substance.
Likewise, for the tax stamp violation, the State needed to show he
“knowingly possessed” cocaine.
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(3) the drugs were on the same side of the car or next to the suspect, (4) if the

suspect owned the vehicle, and (5) any suspicious activity by the suspect. State

v. Kemp, 688 N.W.2d 785, 789 (Iowa 2004). But these specific factors are just

guideposts in our analysis. Id. We must weigh all circumstances to determine

whether there was a “reasonable inference” that Irving knew the crack cocaine was

in the console and had control and dominion over it. Id.

Ticking through the Webb and Kemp factors, Irving notes that although he

was right next to the drugs, the drugs were not in plain view. He also made no

incriminating statements, and his fingerprints were not on the drugs. He

emphasizes that constructive possession cannot rest on proximity alone. See

State v. Cashen, 666 N.W.2d 566, 573 (Iowa 2003). As for his flight in response

to seeing the detective, Irving concedes it was incriminating. But he asserts that

the State did not link his suspicious actions to the presence of the drugs in the

Grand Am that he was driving. And while he was the driver and sole occupant on

the night of the crash, Irving recalls that the State’s evidence did not show that he

owned the Grand Am. Indeed, the exhibits showed that he was one of several

members of his family who used that car.

The State counters that Irving’s evasive conduct reflected guilty knowledge.

See State v. Carter, 696 N.W.2d 31, 40–41 (Iowa 2005) (finding constructive

possession when driver failed to stop when signaled by officer, rummaged around

the center console, and then exited the vehicle). We agree. Irving did not comply

with the officer’s command to show his hands, instead trying to retrieve something

from the car as he scrambled out of the passenger side. See State v. Dewitt, 811

N.W.2d 460, 476 (Iowa 2012) (observing “unreasonable behavior can be relevant”
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to finding constructive possession). On top of this evasive behavior, Irving had

exclusive control of the Grand Am when it crashed. And his dental appointment

card in the glove box suggested this was not his first time using the car.

Viewing all evidence in the light most favorable to the State, we find

sufficient proof that Irving was in constructive possession, or was recently in actual

possession, of the crack cocaine.

Intent to Deliver. Irving next argues that if he did knowingly possess the

crack cocaine, the State failed to show that he had the intent to deliver it. He

highlights how the police found no baggies or scale in the Grand Am.

“Because it is difficult to prove intent by direct evidence, proof of intent

usually consists 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). Often

that circumstantial evidence includes “the manner of packaging drugs, large

amounts of unexplained cash, and the quantity of drugs possessed.” Id. at 648.

The State also may offer testimony from police officers with experience in drug

enforcement to help the factfinder determine intent to deliver. Id.

To that end, Sergeant Sievert testified that the amount of crack cocaine

found in the Grand Am was more consistent with distribution than personal use.

She explained that a “dosage unit” of crack cocaine was generally a rock weighing

one-tenth of a gram, so the bag contained about 190 dosage units. In her

estimation, at the street price of $20 per a rock, the bag was worth about $3800.

In her opinion, that value was “indicative of sale.” Her opinion was not changed

by the lack of a scale or baggies. She reasoned that experienced crack dealers

can “eyeball a weight” and provide that amount to their customer without pre-
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packaging. Sievert also testified that the text messages extracted from Irving’s

phone pointed to drug dealing.

The jury could have accepted the sergeant’s explanation of the volume,

packaging, and text messages. See State v. See, 532 N.W.2d 166, 169 (Iowa Ct.

App. 1995). Again, viewing this evidence in the light most favorable to the State,

we find sufficient proof of Irving’s intent to deliver. On this record, we decline to

disturb the verdicts on possession with intent to deliver or failure to affix a tax

stamp.

B. Competency Hearing

Due process requires that a district court schedule a hearing to determine

competency if the record reveals sufficient doubt of the accused’s mental capacity.

State v. Mann, 512 N.W.2d 528, 531 (Iowa 1994). The purpose of Iowa Code

chapter 812 is to implement the court’s due process duty. Id.

The court may on its own motion schedule a hearing to determine
probable cause if the defendant or defendant’s attorney has failed or
refused to make an application under this section and the court finds
that there are specific facts showing that a hearing should be held on
that question.

Iowa Code § 812.3(1) (2021).

Relevant factors in determining whether the court should schedule a section

812.3 hearing include “(1) defendant’s irrational behavior, (2) any demeanor at trial

that suggests a competency problem, and (3) any prior medical opinion on the

defendant’s competency to stand trial.” State v. Rieflin, 558 N.W.2d 149, 152

(Iowa 1996), overruled on other grounds by State v. Lyman, 776 N.W.2d 865 (Iowa

2010). In applying these factors, the court “must decide whether the defendant
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has a present ability to (1) appreciate the charge, (2) understand the proceedings,

and (3) assist effectively in the defense.” Id. at 152–53.

Irving contends that the court should have questioned his competency when

defense counsel engaged in the colloquy on his decision not to testify. Counsel

elicited that Irving was thirty years old and had completed tenth grade. 3 When

asked about “his ability to think or comprehend,” Irving discussed his difficulty in

thinking and remembering:

I have disability problem of remembering—memory problems ever
since 2002. And I’ve been on disability since around that time—
2005, 2004, since I was a child. So I have loss of memory. And I do
not do legal stuff and report stuff in and stuff because I have disability
problems. So that’s the reason why I feel I’m being taking advantage
of.

His attorney tried to clarify, “You don’t have any defects in your ability to

think; correct?” But Irving answered: “Sometimes.” The attorney asked Irving if

he had understood their conversations about his case. Irving responded: “Kind of.

To a certain point.” Irving also agreed that when it was appropriate, he would ask

questions of his counsel. Irving also agreed that he gave his counsel information

relevant to his defense. Finally, Irving confirmed that he understood both his right

to testify and his right against self-incrimination. Irving told the court he did not

want to testify because he had “loss of memory.”

Beyond that exchange, Irving points to his jury waiver for the enhancement

phase of the trial. Irving asserts he was confused and the court had to reword its

questions. He insists his confusion provided more information that the court should

3 Irving told the presentence report investigator that he obtained his GED while in
federal prison. But the investigator could not verify that information.
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have recognized as a competency problem. And in the alternative, Irving claims

the court should have ordered a post-trial, pre-sentencing competency hearing.

For that alternative claim, he cites the presentence investigation (PSI) report and

his “incomprehensible” pro se letter to the court.4 The PSI report confirmed that

Irving received social security disability benefits because of his “learning difficulties

and ADHD.” The report expressed that Irving “believed himself to be anxious and

depressed with his current circumstances.” But the report noted that Irving had

“never been treated for mental health.”

After our de novo review of the record, we do not find that a reasonable

person would have doubted Irving’s competence. Indeed, Irving’s own attorney

did not question his competence. See Einfeldt, 914 N.W.2d at 780 (quoting

Richard J. Bonnie, The Competence of Criminal Defendants: Beyond Dusky and

Drope, 47 U. Miami L. Rev. 539, 563 (1993) (“[T]he attorney is best situated to

know whether the defendant’s impairments compromise the defense of the case.”

(alteration in original))). True, Irving had mental limitations. But he identifies no

irrational behavior or unsuitable demeanor at trial to suggest incompetency. His

cognitive disability—alone—is not enough to trigger a competency hearing. State

v. Morrison, No. 21-1647, 2022 WL 5067124, at *2 (Iowa Ct. App. Oct. 5, 2022)

(citing Einfeldt, 914 N.W.2d at 782 n.3.).

His invocation of “memory problems” when confirming his decision not to

testify did not signal an inability to appreciate the charges, understand the

4Irving’s letter sought the withdrawal of his trial counsel and cited various rules of
professional conduct. While somewhat rambling, it was not atypical of attempts by
self-represented litigants to formulate a legal argument.
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proceedings, or effectively assist in the defense. It just explained why he did not

want to take the stand, subject to cross-examination. Further, neither Irving’s

request for clarification when waiving his right to a jury for the enhancement stage

nor his pro se request to remove his counsel after the guilty verdicts raised

sufficient misgivings about his mental capacity that the court needed to schedule

a competency hearing.

“Without any request for a competency evaluation or apparent indicia of

incompetency to prompt a court to investigate further on its own, we cannot say

that ‘a reasonable person [would] believe a substantial question of the defendant’s

competency existed’ under Iowa Code section 812.3.” Mann, 512 N.W.2d at 531

(alteration in original) (citation omitted). Thus, the court did not violate Irving’s due

process right.

AFFIRMED.