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noting the admission of drug possession and use is "the kind of evidence that would appeal to the jury’s instinct to punish," "even when the evidence is ‘not terribly inflammatory or prejudicial’ "
Summary of this case from State v. LeeOpinion
No. 5-728 / 04-0721
Filed January 19, 2006
Appeal from the Iowa District Court for Black Hawk County, James C. Bauch, Judge.
A defendant appeals following conviction and sentence for conspiracy to manufacture methamphetamine as a second offender in violation of Iowa Code sections 124.401(1)(c) and 124.411 (2003), and possession of lithium and ether with the intent to manufacture methamphetamine as a second offender in violation of sections 124.401(4) and 124.411. AFFIRMED IN PART AND REVERSED IN PART.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.
Heard by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Donald Duane Nelson, Jr. appeals following conviction and sentence for conspiracy to manufacture methamphetamine as a second offender in violation of Iowa Code sections 124.401(1)(c) and 124.411 (2003), possession of lithium with the intent to manufacture methamphetamine as a second offender in violation of sections 124.401(4) and 124.411, and possession of ether with the intent to manufacture methamphetamine as a second offender in violation of sections 124.401(4) and 124.411. We reverse Nelson's conspiracy conviction, as it was not supported by substantial evidence. His convictions for possession of lithium and ether with intent to manufacture methamphetamine are affirmed.
I. Background Facts and Proceedings.
On November 7, 2003, a Black Hawk County deputy sheriff responded to a call from a local resident who observed some suspicious items, possibly related to the manufacture of methamphetamine, in a wooded area. The site was located along a farm field and was not visible from the road. When he arrived the deputy observed a number of items, including a small backpack, a blue thermos jug with a white top and a yellow price sticker, a five-gallon bucket, plastic tubing, full cans of starting fluid (also described as "ether cans"), a plastic bag containing battery peelings and battery packaging, sulfuric acid, a garden pressure sprayer, a plastic bag containing white powder, coffee filters, and a container of salt. The items looked new, and had been covered over with some twigs or brush.
The deputy contacted the Tri-County Drug Task Force. Task force member Officer Corbin Payne and two other officers arrived on the scene at approximately 7:30 p.m., and observed the items. Officer Payne believed the white power was pseudoephedrine, and noted that all the items at the site were consistent with the manufacture of methamphetamine. According to Officer Payne, the only other ingredient needed to manufacture methamphetamine was anhydrous ammonia.
The officers set up surveillance using night vision goggles. At approximately 10:40 p.m. a vehicle appeared, pulled into the field, turned off its headlights, and proceeded in the dark to the area where the items were located. The driver and passenger exited the vehicle. The passenger stood next to the vehicle and urinated. The driver, who was wearing a dark-colored coat and a hat with some red on it, walked over to where the items were hidden and bent down. A light was flashed on and off as if a person was checking on something. The driver carried the blue thermos back to the car and placed it in the trunk. Both individuals reentered the vehicle.
The vehicle left the field. Its headlights were off and were not turned on until after the vehicle reached the gravel road. The vehicle sped off as officers began to close in on it. The officers gave chase but lost sight of the vehicle's brake lights. They stopped the pursuit when dust reduced visibility. Officers were not able to obtain the vehicle's license plate number, as the plate was obscured by dust and dirt, but were able to put out a description of the vehicle: a late 1980s or early 1990s Mercury Sable with gray below the molding. When officers returned to the wooded area, they discovered the blue thermos and bag of white powder were gone.
At approximately 4:00 a.m. the following morning, officers stopped a 1987 white Mercury Sable with gray molding. The vehicle was registered to Nelson, who was the only occupant of the vehicle. Nelson was wearing a dark-colored coat and a red and black hat, and was carrying a flashlight. A number of items consistent with the manufacture of methamphetamine were found in Nelson's car, including a coffee grinder with a powdery residue, a crock pot, a green hose altered in a manner consistent with using the hose to siphon anhydrous ammonia, lithium batteries, funnels, a receipt for starter fluid and batteries that showed the same UPC number as battery packaging found at the Osage Road site, and a blue thermos jug with a white lid and a yellow price sticker that appeared to be the same as the thermos jug removed from the wooded area.
The thermos jug was located in the trunk of the vehicle. The batteries and receipt were located in the vehicle's passenger compartment, as were two "snort tubes," which are used to ingest methamphetamine. The vehicle also had a toggle switch that prevented the vehicle's brake lights from coming on when the brakes were activated. Although the vehicle's front license plate was relatively clean, the rear plate was obscured by dirt.
On November 18, 2003, the State filed a trial information charging Nelson with conspiracy to manufacture more than five grams of methamphetamine and possession of lithium with intent to manufacture methamphetamine. The information was later amended to include a charge of possession of ether with intent to manufacture methamphetamine, and to allege a sentencing enhancement for all three counts on the basis that Nelson was a prior offender.
A count charging Nelson with possession of ephedrine and/or pseudoephedrine with intent to manufacture methamphetamine, in violation of section 124.401(4), was later dismissed.
Trial was initially set for January 27, 2004. At the January 23 pretrial conference Nelson requested a one-week continuance because he "had a long list of things he wanted done in preparation for trial," and did not believe his attorney would be prepared for trial. The court granted Nelson's request and continued trial until February 3. The order assessed the delay to Nelson. At the January 30 pretrial conference Nelson again moved for a continuance. This request was also granted, and the court continued trial until February 10. The court again assessed the delay to Nelson. At the February 6 pretrial conference the State requested a one-week continuance so that it might obtain a lab report prior to trial. This request was also granted, and trial was continued until February 17. This delay was assessed against the State. Trial was continued a fourth and final time, on the court's own motion, until February 24.
The court continued trial on February 17 because "there was a case that was scheduled ahead of [Nelson's] that was facing a speedy trial problem and would have to be tried first."
The matter proceeded to trial on February 24, 2004. The jury found Nelson guilty on all three counts. Nelson filed a motion for a new trial, asserting the evidence failed to demonstrate the existence of a conspiracy. The motion was overruled, and the court imposed sentence.
Nelson appeals. He asserts there is not substantial evidence to support his conspiracy conviction. He also asserts his right to a speedy trial was violated, the court erroneously admitted prejudicial evidence, and trial counsel was ineffective in several particulars.
Nelson in fact asserts the record does not contain substantial evidence to support any of his three convictions. However, in moving for a judgment of acquittal, Nelson challenged only the sufficiency of the evidence to support his conspiracy conviction. He has accordingly failed to preserve error on his substantial evidence challenges to his possession convictions. See State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996).
II. Substantial Evidence.
We review this claim for the correction of errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). We uphold the jury's verdict if the record reveals evidence that would allow a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Id. In making this determination, "[w]e view the evidence in the light most favorable to the verdict," including all reasonable inferences. State v. Gay, 526 N.W.2d 294, 295 (Iowa 1995).
In order to find that Nelson conspired to manufacture methamphetamine, the State was required to show the following: (1) Nelson agreed with one or more persons — in this case the unknown passenger — that one or both of them would manufacture or attempt to manufacture methamphetamine, (2) Nelson entered into such an agreement with the intent to promote or facilitate the manufacture of methamphetamine, (3) either Nelson or the unknown passenger committed an overt act to accomplish the manufacturing of methamphetamine, and (4) the unknown passenger was not a law enforcement agent or assisting law enforcement when the conspiracy began. See State v. Speicher, 625 N.W.2d 738, 741 (Iowa 2001); see also Iowa Code § 706.1(1)-(4).
Nelson challenges the sufficiency of the evidence to demonstrate either that he was the individual driving the suspect vehicle on the night of November 7, or that he and the unknown passenger entered into an agreement to manufacture or attempt to manufacture methamphetamine. We conclude Nelson's first contention is without merit.
Nelson's car matches the description of the suspect vehicle used on November 7. Like the suspect vehicle, the rear plate of Nelson's vehicle was obscured by dirt. Nelson's vehicle also contains a toggle switch used to kill brake lights, which is consistent with the fact that officers lost sight of the suspect vehicle's brake lights during the pursuit. At the time he was stopped Nelson was wearing clothing similar to that worn by the suspect driver, and was carrying a flashlight. Finally and perhaps most importantly, Nelson's vehicle contained multiple items connected with the manufacture of methamphetamine. These included both a blue thermos jug located in the trunk that appeared to be the same as the blue thermos jug the driver of the suspect vehicle had placed in the suspect vehicle's trunk, as well as a receipt that indicated Nelson had purchased batteries (now reduced to peelings and packaging) found at the Osage Road site.
Viewing this evidence in the light most favorable to the State, including all legitimate inferences, it provides substantial evidence to support a finding that on November 7 Nelson drove his own vehicle to the Osage Road site, accompanied by the unknown passenger. However, we agree with Nelson that the record is insufficient to support a finding that he and the unknown passenger entered into an agreement to manufacture or attempt to manufacture methamphetamine.
We recognize that such an agreement "need not be formal or express, but may be a tacit understanding; the agreement may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the alleged conspirators." State v. Casady, 597 N.W.2d 801, 805 (Iowa 1999). Moreover, we indulge in "[a]ll legitimate inferences arising reasonably and fairly from the evidence" to support a verdict of conspiracy. Id. at 804-05 (citation omitted). However, the evidence must show more than mere presence at the scene or association with those involved in the crime. Speicher, 625 N.W.2d at 742-43.
Here, the evidence demonstrates only that an unknown passenger accompanied Nelson to the Osage Road site, urinated next to the car while Nelson retrieved the blue thermos jug and possibly the bag of white powder, and was present in the car when Nelson fled from police. The fact the passenger accompanied Nelson to a site located in a concealed, rural area, while suspicious, is not sufficient to establish an agreement, tacit or otherwise. See id. at 742 (concluding conspiracy is not established when two people are seen together at a methamphetamine lab, smell of ether, and flee after seeing police).
Even viewing the foregoing evidence in the light most favorable to the State, it is insufficient to allow a rational trier of fact to find Nelson guilty of conspiracy beyond a reasonable doubt. Accordingly, Nelson's conviction for conspiracy to manufacture methamphetamine must be reversed. In light of this decision, we need not address a number of Nelson's other claims. We will, however, address those contentions that are relevant to Nelson's convictions for possession of lithium and ether with intent to manufacture methamphetamine.
Nelson's specific ineffective assistance of counsel claims are directed to the conspiracy charge, and thus need not be addressed. Nelson also makes a general request that "should this [c]ourt deem any of the issues raised on appeal to be inadequately preserved, . . . the [c]ourt proceed on the basis of ineffective assistance of counsel as all issues concern basic legal duties of counsel and the prejudice is the same as claimed above." Such a request is no more than a bare assertion, and fails to state the specific ways in which counsel's performance was inadequate and identify how competent representation probably would have changed the outcome. See State v. Astello, 602 N.W.2d 190, 198 (Iowa Ct.App. 1999). It also fails to comply with our rules of appellate procedure. See Iowa R. App. P. 6.14(1). We are not bound to consider claims that fail to comply with our procedural rules, Hanson v. Harveys Casino Hotel, 652 N.W.2d 841, 842 (Iowa Ct.App. 2002), or that require us to assume a partisan role and undertake a party's research and advocacy, State v. Stoen, 596 N.W.2d 504, 507 (Iowa 1999).
III. Speedy Trial.
Nelson asserts the district court erred when it failed to dismiss the charges based upon a violation of his right to a speedy trial. Our review is for the correction of errors at law. State v. Hart, 703 N.W.2d 768, 771 (Iowa Ct.App. 2005). We are bound by the court's factual findings if they are supported by substantial evidence. Id. To the extent the defendant raises a constitutional claim of a speedy trial violation, our review is de novo. State v. Keys, 535 N.W.2d 783, 786 (Iowa Ct.App. 1995).
When a defendant has not waived his right to a speedy trial, and has not been brought to trial within ninety days after filing of the charging instrument, the court must order the charges dismissed "unless good cause to the contrary be found." Iowa R. Crim. P. 2.33(2)( b). Good cause "`focuses on only one factor: the reason for the delay.''' State v. Nelson, 600 N.W.2d at 598, 601 (Iowa 1999) (citation omitted). "[A] comparatively weak reason for the delay may become sufficient to avoid dismissal if the delay is relatively short and does not prejudice the accused." Keys, 535 N.W.2d at 786. The State bears the burden of proving good cause for the delay. Nelson, 600 N.W.2d at 600. This can include proof the delay is attributable to the defendant. Id.
Here, Nelson did not waive his right to a speedy trial, but rather continued to actively assert his right. Moreover, he was not brought to trial by February 17, the last day to bring him to trial under the ninety-day rule. However, he was brought to trial one week later, well within the two weeks of delay the district court determined were attributable to Nelson.
Nelson contends it was error to assess this delay to him. However, the two week delay was not only consented to but instigated by Nelson when he sought and obtained two consecutive one-week continuances. A defendant may not participate in events which delay his trial, and then later take advantage of the delay to terminate the prosecution. State v. Finn, 469 N.W.2d 692, 694 (Iowa 1991). We agree with the district court that the two weeks of delay were attributable to Nelson. The State has established good cause for the delay in bringing Nelson to trial. No speedy trial violation has occurred.
IV. Evidentiary Rulings.
Nelson forwards two claims of evidentiary error. He contends the court erred in admitting as an exhibit at trial his "Pro Se Motion for Treatment," filed in the instant action, in which Nelson stated that he was "addicted to drugs," and requested the court to place him in outpatient treatment. He contends the court also erred when it allowed law enforcement officers to testify the white powdery substance in the baggie at the Osage Road site was pseudoephedrine.
We review such claims for an abuse of discretion by the district court. State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998). Abuse is found where a district court exercised its discretion on clearly untenable grounds, for clearly untenable reasons, or to an clearly unreasonable extent. State v. Bayles, 551 N.W.2d 600, 604 (Iowa 1996). "A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law." Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).
Nelson asserts these errors are of a constitutional magnitude, as they deprived him of a fair trial and due process, and violated rights guaranteed under the Sixth and Fourteenth Amendments to the United States Constitution and Iowa Constitution article 1, sections 9 and 10. Nelson does not however, offer any argument or authority in support of this general contention. We accordingly do not consider it on appeal. See Iowa R. App. P. 6.14(1); Stoen, 596 N.W.2d at 507; Hanson, 652 N.W.2d at 842. Moreover, we agree with the State that neither allegedly erroneous evidentiary ruling "go[es] to the heart of the case" as is required "to be considered of such a magnitude as to implicate the due process clause." State v. Veal, 564 N.W.2d 797, 808 (Iowa 1997) ( overruled on other grounds by State v. Hallum, 585 N.W.2d 249, 253 (Iowa 1998)).
A. Nelson's Pretrial Pro Se Motion for Drug Treatment.
Nelson contends the district court erred when it determined Iowa Rule of Evidence 5.403 did not require exclusion of his admission of drug addiction and request for drug treatment. Rule 5.403 requires exclusion of otherwise relevant and admissible evidence when the evidence's probative value is substantially outweighed by the danger of unfair prejudice. Probative value gauges the strength and force of the evidence to make a consequential fact more or less probable. State v. Rodriquez, 636 N.W.2d 234, 240 (2001). To be unduly prejudicial, the evidence must create an undue tendency in the jury to make a decision on an improper, and often emotional, basis. State v. Brown, 569 N.W.2d 113, 117 (Iowa 1997). Evidence is not unfairly prejudicial merely because it tends to demonstrate a defendant's guilt. State v. McDaniel, 512 N.W.2d 305, 308 (Iowa 1994).
Nelson also asserts the statement and request constitute prior bad acts evidence subject to exclusion under rule 5.404( b). However, Nelson's objections to the admission of the pro se motion were limited to relevancy under rules 5.401 and 5.402 and undue prejudice under rule 5.403. Because an objection based on rule 5.404( b) was never raised in conjunction with the pro se motion, we do not address it on appeal. See State v. Howard, 509 N.W.2d 764, 769 (Iowa 1993) (finding error is not preserved unless trial court was alerted to specific grounds urged on appeal).
When the evidence involves bad acts evidence, we look to the test articulated in State v. Plaster, 424 N.W.2d 226, 232 (Iowa 1988), which requires courts to balance on the one side, the actual need for the . . . evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other [acts] were committed and that the accused was the actor, and the strength or weakness of the . . . evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility.
We conclude application of the Plaster test is appropriate in this case. Inherent in Nelson's admission of drug addiction is an admission of prior drug possession and use.
Applying the foregoing standards to the facts of this case, we note the State was required to prove that Nelson knowingly or intentionally possessed products containing lithium and ether, and that he had the specific intent to use the lithium and ether to manufacture methamphetamine. See Iowa Code § 124.401(4). Nelson's admission of drug addiction and treatment request were relevant to establishing both elements, particularly in light of his possession of two "snort tubes" that indicated the prior possession and use involved methamphetamine. The foregoing leads to a reasonable inference that Nelson was a chronic methamphetamine user, and knowingly possessed the precursors with the intent to use them in manufacturing his drug of choice. See State v. Casady, 491 N.W.2d 782, 786 (Iowa 1992) (noting specific intent may be shown by circumstantial evidence and the reasonable inferences drawn therefrom). Moreover, Nelson's inculpatory admission provides clear proof the prior acts occurred.
However, we question the actual need for this evidence in light of the other evidence in the record. When Nelson was stopped by police his vehicle contained a number of items used in the manufacturing of methamphetamine, as well as lithium batteries. It also contained the blue thermos jug and receipt which, along with other evidence, tied Nelson to the nearly complete methamphetamine lab located at the Osage Road site. The items found at that site included the starting fluid or "ether cans." In addition, as previously noted, the snort tubes located in Nelson's vehicle themselves indicated that Nelson was a methamphetamine user. Given the remaining evidence in the case, we conclude evidence of Nelson's drug addiction, while relevant, was of limited probative value.
Furthermore, because the admission of addiction and request for treatment is the functional equivalent of an admission of prior drug possession and use, it was the kind of evidence that would appeal to the jury's instinct punish. See State v. Liggins, 524 N.W.2d 181, 188-89 (Iowa 1994). In recent cases our supreme court has clearly signaled that admission of evidence of the same or essentially the same drug-related crime as the one currently charged has a "strong prejudicial impact." See, e.g., State v. Henderson, 696 N.W.2d 5, 12 (Iowa 2005). While drug possession is not the same crime as possession of precursors with intent to manufacture methamphetamine, it is similar in nature and kind, particularly as it is reasonable to infer the drug Nelson possessed and used was in fact methamphetamine. In light of this similarity, admission of the evidence presented a real and significant danger that the jury would be improperly motivated to punish a chronic drug user, rather than to convict Nelson based upon only the proven elements of the crimes charged.
As our supreme court has recently noted, even when the evidence is "not terribly inflammatory or prejudicial," the "deleterious effect" of such evidence may still be sufficient to outweigh minimal probative value. See State v. Martin, 704 N.W.2d 665, 672-73 (Iowa 2005). We conclude the somewhat minimal probative value of Nelson's admission of addiction and request for drug treatment is substantially outweighed by a danger of unfair prejudice. Although "we give much leeway [to] trial judges who must fairly weigh probative value against probable dangers," State v. Taylor, 689 N.W.2d 116, 124 (Iowa 2004), under the circumstances of this case the district court abused its discretion in concluding otherwise.
This does not end our inquiry, however, as we must further ascertain whether the error requires us to reverse Nelson's convictions. Henderson, 696 N.W.2d at 12. Reversal is required if it appears that, because of admission of the evidence, Nelson suffered a miscarriage of justice or had his rights injuriously affected. State v. Moorehead, 699 N.W.2d 667, 672 (Iowa 2005). Unless the record affirmatively establishes otherwise, prejudice is presumed. Id.
Here, the record contains very strong evidence that Nelson possessed lithium and ether with intent to manufacture methamphetamine. Cf. Martin, 704 N.W.2d at 673 (finding error harmless, in part, because evidence of guilt was "overwhelming"). Lithium batteries were found in the passenger compartment of Nelson's vehicle, and the car contained numerous other items used in the manufacture of methamphetamine, including some that had been altered in ways specific to their use in the manufacturing process. There was also substantial evidence that tied Nelson to the nearly complete methamphetamine lab site where the starter fluid was located.
In addition, to the extent Nelson's admission demonstrates past methamphetamine use, it was largely cumulative of other evidence in the case — the two snort tubes located in the passenger compartment of Nelson's vehicle. See State v. Jurgenson, 225 N.W.2d 310, 312 (Iowa 1975) (noting erroneous admission of evidence is nonprejudicial when substantially the same evidence appears in the record without objection). In light of the remaining evidence of Nelson's guilt, the record affirmatively demonstrates that Nelson's rights were not injuriously affected by admission of this evidence. Thus, its admission cannot serve as a basis to reverse Nelson's convictions for possession of ether and lithium with intent to manufacture methamphetamine.
B. Officer Testimony Regarding Presence of Pseudoephedrine.
Nelson contends the district court further erred when it allowed law enforcement officers to testify that the white powdery substance in the plastic bag initially found at the Osage Road site, but missing following Nelson's stop at the site, contained pseudoephedrine. Nelson contends the evidence was inadmissible under rule 5.402 because it was irrelevant, and under rule 5.403 because any probative value was substantially outweighed by the danger of unfair prejudice. His contentions are without merit.
Evidence that Nelson possessed a primary ingredient in manufacturing methamphetamine clearly tends to demonstrate that he knowingly possessed other precursors and did so with the intent to manufacture methamphetamine. See Iowa R. Evid. 5.401 (defining relevant evidence); State v. Shortridge, 589 N.W.2d 76, 83 (Iowa Ct.App. 1998) (noting evidence immediately surrounding the offense is admissible in order to show the complete story of a crime, even when it shows commission of another crime). Moreover, the only prejudice alleged by Nelson is the fact the evidence makes it "much more likely" that he was operating a methamphetamine lab. As we have previously noted, evidence is not unfairly prejudicial merely because it tends to demonstrate a defendant's guilt. McDaniel, 512 N.W.2d at 308. We perceive no abuse of discretion in the district court's admission of this evidence.
Nelson also points out the substance was never tested, and thus never conclusively established to be pseudoephedrine. However, during direct and cross examination the officers admitted the material was never subject to testing, and indicated they were offering opinions based on training and experience.
V. Conclusion.
We have considered all of Nelson's claims, whether or not specifically discussed. Because we conclude his conviction for conspiracy to manufacture methamphetamine was not supported by substantial evidence, we reverse that conviction and sentence. Nelson's convictions and sentences for possession of lithium with intent to manufacture methamphetamine and possession of ether with intent to manufacture methamphetamine are affirmed.