Opinion
No. 3-824 / 02-1163.
Filed December 24, 2003.
Appeal from the Iowa District Court for Polk County, Karen Romano, Judge.
Randy Lee Barnes appeals from his convictions for possession of pseudoephedrine with the intent to use it as a precursor and possession of a controlled substance, methamphetamine. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert Ewald, Assistant Attorney General, John Sarcone, County Attorney, and Gary Kendall, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, JJ.
Randy Lee Barnes appeals following his convictions for possession of pseudoephedrine with the intent to use it as a precursor (as a second offender and a habitual offender), and possession of a controlled substance, methamphetamine. He claims the district court erred in denying his motion for judgment of acquittal and his motion for a new trial. He also claims that his trial attorneys were ineffective. We affirm.
I. Background Facts Proceedings
The evidence, as viewed most favorably to the State, reveals the following facts and circumstances. On February 9, 2002, Des Moines police officer Robert Clark observed a vehicle weaving across the centerline. Further observations led Clark to believe that the driver and a passenger were engaged in an argument. Clark radioed for a marked patrol car to assist in the stop of the vehicle. An officer responded to Clark's request and pulled the vehicle over.
Barnes was sitting in the front passenger seat. An officer asked the defendant for his name and identification. Barnes said he did not have any identification on him and provided officers with a false name. Officer Clark suspected Barnes was lying about his name and asked him to step out of the vehicle. When Barnes was getting out of the car, Clark noticed a spoon with a whitish residue on it sitting on the passenger side floorboard. Clark suspected the residue on the spoon was methamphetamine.
Clark asked Barnes if he had any drugs on him. Barnes replied that he did not. Clark asked Barnes if he could search his pockets for drugs and Barnes consented. A search revealed a Marlboro cigarette pack, which contained a plastic baggy of methamphetamine, inside Barnes's front shirt pocket. Clark arrested Barnes. Thereafter, Barnes revealed his true identity to Clark. Clark subsequently discovered that there was an outstanding warrant for Barnes's arrest.
While Clark was dealing with Barnes, one of the other officers searched the vehicle. He found a small black tin that contained 265 pills underneath the front passenger seat. Clark asked Barnes what the pills were. Barnes claimed he did not know. He told Clark someone gave him the pills a little bit earlier at a bar. Barnes declined to give Clark any specifics regarding who had given him the pills or for what reason. Further investigation revealed the pills in the black tin consisted of five different brands of tablets containing pseudoephedrine. The baggy recovered from the defendant's shirt pocket contained 1.2 grams of methamphetamine and dimethyl sulfone.
On March 18, 2002, the State charged Barnes with possession of pseudoephedrine with the intent to use it as a precursor and possession of a controlled substance, methamphetamine. Barnes waived his right to a jury trial. After the State presented its case to the court, Barnes made a motion for judgment of acquittal. The court denied his motion. The court found Barnes guilty on all charges. Following trial, Barnes stipulated to his status as a second offender and a habitual offender. Later, Barnes filed a pro se motion for new trial, which the court denied. On July 19, 2002, Barnes was sentenced to a fifteen year term of imprisonment for possession of pseudoephedrine with the intent to use it as a precursor and one year for possession of a controlled substance, methamphetamine. The first sentence was enhanced because Barnes was a second offender and a habitual offender. The terms of imprisonment were ordered to run concurrently. Barnes now appeals.
II. Motion for Judgment of Acquittal
Barnes claims the district court erred in denying his motion for judgment of acquittal because there was insufficient evidence to support his conviction for possession of pseudoephedrine with the intent to use it as a precursor. At trial, Barnes testified that he is a methamphetamine addict. He claimed he possessed the pseudoephedrine, not to manufacture methamphetamine, but so that he could ingest up to a dozen pills at a time to achieve a high "which would last several hours." He testified he did this when he could not obtain methamphetamine. On appeal, Barnes contends his testimony regarding why he possessed 265 pseudoephedrine pills "should be sufficient for raising reasonable doubt in the fact finder as to whether the State has proven the intent element of the offense."
We will uphold a trial court's denial of a motion for judgment of acquittal if there is substantial evidence to support the defendant's conviction. State v. Adney, 639 N.W.2d 246, 250 (Iowa Ct. App. 2001). Substantial evidence is such evidence as could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id. Our scope of review of sufficiency of evidence challenges is for correction of errors at law. Iowa R. App. P. 6.4. In reviewing such challenges we give consideration to all of the evidence, not just the evidence supporting the verdict. Adney, 639 N.W.2d at 250. We examine the record in the light most favorable to the State. State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996). Since 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. Adams, 554 N.W.2d 686, 692 (Iowa 1996). Intent may be inferred from the quantity of the drugs or the manner in which they are packaged. Id.
The record reveals substantial evidence to support the district court's conclusion that Barnes possessed pseudoephedrine with the intent to use it as a precursor. The State's expert witness testified that "pseudoephedrine is one of the main precursors that's used in the manufacture of methamphetamine." He also said that the only "plausible explanation of why someone would have hundreds of pseudoephedrine tablets with them" is that they were going to manufacture methamphetamine. The record further reveals that the district court rejected the defendant's testimony that the pills were for his personal use. The court noted that methamphetamine was found on the defendant's person, making consumption of the pseudoephedrine pills unnecessary. In addition, Barnes's statements to the arresting officer regarding the pills were inconsistent with his trial testimony. See State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993) (false story told by defendant to explain or deny material fact against him is by itself an indication of guilt). Barnes's statements to the arresting officer that he did not know anything about the pills were also called into question by his prior conviction of possession of methamphetamine with intent to deliver. Defendant's credibility was further tarnished by his prior convictions for crimes involving dishonesty. We believe the evidence was sufficient to allow the district court to find that Barnes possessed pseudoephedrine with the intent to manufacture methamphetamine.
III. Ineffective Assistance of Counsel
Barnes contends that both of his trial attorneys were ineffective. He contends that his first attorney was ineffective because she did not state specific grounds for his motion for judgment of acquittal and did not adequately prepare for trial or prepare Barnes for trial. He claims that his second attorney was ineffective because he presented little evidence to show that his first attorney's ineffectiveness was prejudicial to him.
Annette Hitchcock represented Barnes at his bench trial. A new attorney, William Brewer, was appointed to represent defendant on his motion for new trial.
We review claims of ineffective assistance of counsel de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). For Barnes to prevail on his claim he must prove that his counsel failed in an essential duty and that prejudice resulted. Collins v. State, 588 N.W.2d 399, 402 (Iowa 1998). He has the burden to show his counsel was ineffective by a preponderance of the evidence. State v. Allen, 565 N.W.2d 333, 336 (Iowa 1997). In resolving an ineffective assistance claim the ultimate test is whether under the entire record and the totality of the circumstances counsel's performance was within the normal range of competency. Collins, 588 N.W.2d at 402. Improvident trial strategy, miscalculated tactics, or mistakes in judgment do not necessarily amount to ineffective assistance of counsel. Id.
To establish prejudice, Barnes must show there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the defendant's trial. Collins, 588 N.W.2d at 402. Our ultimate concern is with the fundamental fairness of the proceeding whose result is being challenged. Id.
Barnes's first attorney stated the following in her motion for judgment of acquittal:
Your Honor, at this time defense would simply have a motion based on the fact that I don't believe the State has provided enough evidence to sum up its case. We would ask that the case be dismissed.
Barnes claims that this motion was inadequate to preserve error regarding his contention that the evidence presented by the State was insufficient to convict him. Therefore, he claims his first attorney was ineffective. We find no merit in this argument.
It is not necessary in a bench trial to move for a judgment of acquittal. State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997). Our Supreme Court in Abbas stated:
Motions for judgment of acquittal are governed by Iowa Rule of Criminal Procedure 18(8), the language of which presumes the existence of a jury trial. The purpose of such a motion is to provide the court with an opportunity to ensure that there is sufficient evidence to support the submission of the case to the jury which serves as the fact finder. In a bench trial, the court is the fact finder and its finding of guilt necessarily includes a finding that the evidence was sufficient to sustain a conviction.
Id. at 73-74
Since Barnes's attorney was not required to make a motion for judgment of acquittal in order to preserve error regarding sufficiency of the evidence, his attorney was not ineffective on this point.
Barnes also argues that his first attorney was ineffective because she did not adequately prepare for trial or prepare Barnes for trial. He first made this argument in a pro se motion for a new trial. While his motion for a new trial was denied by the district court, his claim of ineffective assistance of counsel was preserved for possible postconviction relief (PCR) proceedings.
Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to afford the defendant an evidentiary hearing and to permit the development of a more complete record. State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996). In this appeal, we find that the record is inadequate to address the defendant's claim that his first attorney did not prepare for trial or prepare Barnes for trial. Accordingly, we preserve this claim for possible PCR proceedings.
Finally, Barnes contends that his second attorney was ineffective because he should have presented more or different evidence in support of his claim that his first attorney was ineffective. We find the record on appeal inadequate to address defendant's claim. Therefore, we preserve this claim for possible PCR proceedings, where trial counsel would have an opportunity to respond to defendant's accusations.
IV. Motion for New Trial
Barnes claims that "the trial court erred in denying [his] motion for [a] new trial based on the claim that the verdict is contrary to the weight of the evidence." He argues that the district court's decision to deny his motion for a new trial should be reversed based on the arguments he presented under the other issues on appeal.
Our scope of review for this claim is for abuse of discretion. State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998). The phrase "contrary to the evidence" in the rules of criminal procedure means "contrary to the weight of the evidence" rather than "not supported by sufficient evidence." Id.
Since the district court served as the trier of fact in this case, it had already concluded that the evidence presented by the State was more credible on key issues than the evidence presented by the defendant. Defendant's motion amounted to nothing more than a request to reconsider. The court did reconsider its verdict, and decided not to change it. We do not find that the trial court abused its discretion in reaching this decision.
We affirm the defendant's convictions and preserve his claims of ineffective assistance of counsel for possible postconviction relief proceedings.