Opinion
No. 2-572 / 01-0958
Filed September 11, 2002
Appeal from the Iowa District Court for Polk County, Robert D. Wilson, Judge.
Defendant appeals his conviction and sentence, following a jury trial for conspiracy to manufacture methamphetamine, manufacture of a controlled substance, possession of ephedrine or pseudoephedrine with intent to use it as a precursor, and eluding or attempting to elude. AFFIRMED IN PART AND REVERSED IN PART.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, John Sarcone, County Attorney, and Daniel Voogt, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Mahan, JJ.
Defendant-appellant Kevin Jones appeals his conviction and sentence, following a jury trial, for conspiracy to manufacture methamphetamine, in violation of Iowa Code section 124.401(1)(b)(7) (1999) (Count I); manufacture of a controlled substance, in violation of section 124.401(1)(b)(7) (Count II); possession of ephedrine or pseudoephedrine with intent to use it as a precursor, in violation of section 124.401(4) (Count III); possession of anhydrous ammonia with the intent to use it as a precursor, in violation of section 124.401(4) (Count IV); and eluding or attempting to elude, in violation of section 321.279(3) (Count V). Defendant claims on appeal 1) there was insufficient evidence to convict him of manufacturing methamphetamine or conspiracy to manufacture methamphetamine; 2) his convictions for conspiracy to manufacture methamphetamine and manufacturing methamphetamine should have merged into one conviction; 3) he was rendered ineffective assistance of counsel; and 4) the trial court erred in denying his motion in limine. We affirm in part and reverse in part.
I. FACTS
On October 28, 2000 Iowa game warden Officer Kirby Bragg observed a white van with an open door parked at an intersection on a gravel road in northeastern Polk County. A man later determined to be codefendant Domenig was outside the van. After he returned to it, the van drove off with its passenger door open. Officer Bragg followed the van and eventually initiated a stop. Defendant was the driver, and codefendant Domenig was sitting in the passenger seat. Upon investigating Officer Bragg noticed a white propane tank between the front seats. He also noticed discoloration of the brass fitting on top of the tank where the hose was taped to the fitting. Officer Bragg asked defendant and Domenig to get out of the van. They did, and he patted them down and found two hypodermic needles on Domenig.
After Bragg radioed for backup, Officer Lonneman appeared on the scene. Defendant and Domenig, who had gotten back in the van, took off at a high rate of speed. The officers chased them and saw several items thrown out of the van, including baggies, a tarp, and later, the propane tank. Before the propane tank was thrown out, the officers observed a white cloud of vapor emitted from the van. They identified the vapor as anhydrous ammonia from its smell. The chase continued west through Elkhart, south through Ankeny, and to Highway 69. It finally ended near Saydel Middle School after the van drove through a fence, hit a berm, became airborne and then hit the ground. Defendant tried to flee the scene, but was apprehended.
Narcotics agents called to the scene found a black bag containing a scale, a police scanner, and receipts for muriatic acid and lithium batteries in the van. Later that day Department of Criminal Investigation agents saw in the van a Coleman fuel can, a can of acetone, a can of denatured alcohol, lithium batteries, blister packs of Sudafed containing pseudoephedrine, a propane tank with an altered valve, and a garden sprayer. An agent later proceeded to the location where the chase had originated in northern Polk County and found items along the road in that area including a propane tank, battery components, tubing, and baggies with powder residue.
Additional items collected in Ankeny where the chase had passed included a white powdery substance, open plastic bags, and bubble packs of pills.
The next morning, at the site where the van was first seen, Officers Lonneman and Bragg found pill packages and items demonstrating the characteristics of lithium strips.
II. SUFFICIENCY OF THE EVIDENCE
Defendant claims there was insufficient evidence to support his conviction for manufacturing more than five grams of methamphetamine or conspiracy to manufacture more than five grams of methamphetamine. We review a challenge to the sufficiency of the evidence for errors at law. State v. Speicher, 625 N.W.2d 738, 740 (Iowa 2001). The verdict will be upheld where there is substantial evidence to support the charge. Id. Substantial evidence means such evidence as would convince a rational trier of fact that the defendant is guilty of the crime charged beyond a reasonable doubt. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). In reviewing challenges to the sufficiency of evidence supporting a guilty verdict, we consider all of the record evidence in the light most favorable to the State and make all reasonable inferences that may fairly be drawn from the evidence. State v. McPhillips, 580 N.W.2d 748, 753 (Iowa 1998). Although direct and circumstantial evidence are equally probative, the inferences to be drawn from the proof in a criminal case must "raise a fair inference of guilt as to each essential element of the crime." Speicher, 625 N.W.2d at 741, quoting State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992). Evidence which raises only suspicion, speculation, or conjecture is insufficient. Casady, 491 N.W.2d at 787.
Defendant argues there was insufficient evidence supporting his conviction for manufacturing methamphetamine. Defendant contends no methamphetamine was found in the van or roadway and that the only evidence supporting a manufacturing conviction under section 124.401(1)(b)(7) was a lab analysis estimating the potential yield of methamphetamine from the various ingredients found in the van and on the chase route.
To prove its case the State was required to establish defendant manufactured methamphetamine, and that he knew he was doing it. No end-product methamphetamine was ever found. Under State v. Royer, 632 N.W.2d 905, 907-09 (Iowa 2001), to support a manufacturing charge the State may not rely on "the potential yield of methamphetamine that might be obtained" from certain materials. We therefore conclude in this case that the evidence was insufficient to convict defendant of manufacturing methamphetamine under section 124.401(1)(b)(7). Accordingly we reverse defendant's conviction on Count II, manufacturing methamphetamine.
Defendant also claims there was insufficient evidence to support his conviction for conspiracy to manufacture methamphetamine. Evidence of the "potential yield" is sufficient to support a conviction of conspiracy to manufacture methamphetamine under section 124.401(1)(b)(7). Id. at 907, (citing Casady, 597 N.W.2d at 807). Although evidence of the "potential yield" was sufficient to establish more than five grams of methamphetamine, the State was nevertheless required to establish the basic elements of conspiracy. In order to prove defendant guilty of conspiracy to manufacture methamphetamine, the State was required to make the following showing: 1) defendant agreed with Domenig that one or both of them would manufacture or attempt to manufacture methamphetamine; 2) defendant entered into the agreement with the intent to promote or facilitate the manufacture of methamphetamine, a class "B" felony; 3) defendant or Domenig committed an overt act to accomplish the manufacturing of methamphetamine; 4) Domenig was not a law enforcement agent or assisting a law enforcement agent. Speicher, 625 N.W.2d at 741; see Iowa Code § 706.1.
Conspiracy has been further defined as a combination or agreement between two or more persons to do or accomplish a criminal or unlawful act, or to do a lawful act in an unlawful manner. State v. Ross, 573 N.W.2d 906, 914 (Iowa 1998). Such an agreement has been defined to require a "concert of free wills," "union of minds of at least two persons," and "a mental confederation involving at least two persons." State v. Boyer, 342 N.W.2d 497, 499 (Iowa 1984) (citations omitted).
The evidence cited by the State to support a finding of conspiracy consisted of 1) defendant's and Domenig's presence in Domenig's van, which contained ingredients for making methamphetamine and equipment for one step of the manufacturing process; and 2) defendant's and Domenig's joint efforts to elude police while discarding the van's contents. The State also points to the other charges defendant was convicted of in this case that have not been appealed, namely possession of anhydrous ammonia and possession of ephedrine with intent to use both as precursors. The State contends these convictions help establish the conspiracy charge.
In Speicher, 625 N.W.2d at 742-43, the supreme court concluded that the joint presence of the defendant and another person in a methamphetamine lab located inside a garage owned by the other person, coupled with their mutual attempt to escape, was insufficient to establish any agreement by the two to participate in the process of manufacturing methamphetamine. The court concluded that although there was evidence the defendant knew methamphetamine was being manufactured in the garage, there simply was no evidence he had agreed to participate in its manufacture. Id. at 743.
We conclude this case is factually distinguishable from Speicher and therefore find there was sufficient evidence to find defendant guilty of conspiracy to manufacture metamphetamine. In Speicher the supreme court concluded that although the facts demonstrated the defendant, who had been present in a meth lab, knew the owner of the lab was manufacturing methamphetamine, there was no evidence the defendant had agreed to participate in the manufacturing process. Speicher, 625 N.W.2d at 742-43. Here defendant was convicted of possession of both anhydrous ammonia and ephedrine or pseudoephedrine with the intent to use them as precursors. No appeal was taken from these convictions. The fact that defendant and Domenig were in a van containing ingredients to manufacture methamphetamine is not sufficient in itself to show a conspiracy. However, this fact coupled with the conclusory findings of defendant's possession with intent to use ephedrine or pseudoephedrine and anhydrous ammonia as precursors, does provide substantial evidence to find defendant guilty of conspiracy to manufacture methamphetamine beyond a reasonable doubt.
III. MERGER
Defendant also claims on appeal that he was improperly convicted of both conspiracy to manufacture methamphetamine and manufacturing methamphetamine under section 124.401(1)(b)(7). As we have vacated defendant's conviction on Count II, manufacturing methamphetamine, the question of merger is no longer at issue.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant next claims he was rendered ineffective assistance of trial counsel. Defendant argues his counsel neglected an essential duty when he failed to 1) challenge the admissibility of "potential yield" evidence and 2) adequately investigate the charges prior to trial. Defendant argues that his counsel should have objected to the State's evidence of "potential yield," as it was too speculative and there was no indication the methods used for estimating "potential yield" were accepted practices within the scientific community. Defendant also argues his attorney made no attempt to conduct discovery or otherwise make pretrial investigations necessary for his defense.
We review de novo. See State v. Allen, 565 N.W.2d 333, 336 (Iowa 1997). In order to establish ineffective assistance of counsel, defendant must show by a preponderance of the evidence that (1) counsel failed to perform an essential duty, and (2) prejudice resulted. Id. Frequently, claims of ineffective assistance of counsel are not resolved on direct appeal but are preserved for postconviction proceedings to allow the preparation of an adequate record and to allow the attorney charged with ineffective assistance an opportunity to respond to the claim. State v. Kinkead, 570 N.W.2d 97, 103 (Iowa 1997).
We conclude defendant's claim that his counsel should have objected to the "potential yield" evidence should be preserved for postconviction review in order to further develop the record. We decline to preserve defendant's general objections to counsel's lack of trial strategy, as defendant fails to point to the particular prejudicial effect of such error on the trial. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994).
V. DEFENDANT'S MOTION IN LIMINE
Defendant's final claim on appeal is that the district court abused its discretion in denying defendant's motion in limine to exclude evidence found by the side of the road. Defendant claims this evidence was unfairly prejudicial to his case and should have been excluded as more prejudicial than probative. The State responds that defendant has preserved this argument with respect to the blister packs only, as he did not object during trial to the admission of any other evidence. See State v. Harlow, 325 N.W.2d 90, 91 (Iowa 1982) (a ruling granting or denying a motion in limine does not generally preserve the record for review of an alleged error).
We review for abuse of discretion. State v. Spargo, 364 N.W.2d 203, 209 (Iowa 1985). To constitute an abuse of discretion the district court's decision must have been exercised on grounds clearly untenable or to an extent clearly unreasonable. State v. Greene, 592 N.W.2d 24, 27 (Iowa 1999).
We find no abuse of discretion. Officers Bragg and Lonneman testified defendant and Domenig threw items out of the van as they were attempting to escape. Shortly thereafter items including those matching the description of what the officers saw thrown out of the van, were found on the roadside along the van's escape route. We conclude these items were sufficiently connected, in time and place, to the defendants. We affirm the district court's denial of defendant's motion in limine.
AFFIRMED IN PART AND REVERSED IN PART.