Opinion
No. 2-803 / 01-1808
Filed January 29, 2003
Appeal from the Iowa District Court for Keokuk County, Richard J. Vogel, Judge.
William Pickerell appeals his conviction for possession of a precursor with intent to manufacture methamphetamine. REVERSED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, Edward G. Harvey, Special Prosecutor, and John E. Schroeder, Assistant County Attorney, for appellee.
Heard by Mahan, P.J., and Vaitheswaran, J, and Brown, S.J.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
Defendant, William Isom Pickerell, appeals his conviction, following a jury trial, and sentence for possession of anhydrous ammonia, a precursor, with intent to manufacture methamphetamine in violation of Iowa Code section 124.401(4) (2001), a class D felony, and for being a habitual offender in violation of Iowa Code sections 902.8 and 902.9. We agree with Pickerell's contention the evidence of his intent to manufacture methamphetamine is not sufficient to sustain his conviction and therefore reverse.
The jury could reasonably have found Pickerell and his companion, Chastity Sanders, were observed by law enforcement officers late at night removing anhydrous ammonia from a tank into a small container they brought with them. They were apprehended while still carrying the container of anhydrous ammonia. Sanders told officers they intended to trade the anhydrous ammonia to another person in exchange for methamphetamine. Pickerell told officers he was going to sell the anhydrous ammonia to a person who would make methamphetamine. Anhydrous ammonia is one of the ingredients (called a "precursor") used to manufacture methamphetamine.
Responding to a question as to whether any other components used to manufacture methamphetamine were found at the scene, one of the officers testified that, while later inventorying Sanders' purse, he found "something that could be used." He added, "I don't think it was gonna be used at that time." Whatever he found was not further identified. No other precursor materials were found by the officers. No apparatus used to produce methamphetamine was found. There was no evidence either Sanders or Pickerell had manufactured methamphetamine in the past or knew the process involved.
Pickerell claims there was insufficient evidence to warrant a jury finding he intended to manufacture methamphetamine. The State claims the evidence was sufficient, and, alternatively, the jury could well have found he was supplying a person who intended to manufacture methamphetamine, which the State urges satisfies the intent requirement. Pickerell claims the intent requirement is personal and cannot be met by some other person intending to manufacture the controlled substance. Pickerell alternatively claims his trial counsel was ineffective for failing to object to the instruction defining the term "manufacture." The parties agree the instruction was an incomplete statement of the law, however the State asserts the erroneous instruction was not prejudicial to Pickerell.
The error in the instruction does not affect this analysis. The instruction omitted an exception to the definition of "manufacture" not relevant here.
We review error based on claimed insufficiency of the evidence for errors of law. State v. Webb, 648 N.W.2d 72, 73 (Iowa 2002). In our analysis, we recognize the jury's decision is binding on us if supported by substantial evidence. This requires evidence sufficient to satisfy a reasonable juror the State has proved each element of the crime beyond a reasonable doubt. State v. Spivie, 581 N.W.2d 205, 208 (Iowa Ct.App. 1998). We view the evidence in a light most favorable to the State and we consider all the evidence, not just that which favors the prosecution. Id. "Evidence that raises only suspicion, speculation, or conjecture is not substantial evidence." Id. Ineffective assistance of counsel claims are reviewed de novo. Collins v. State, 588 N.W.2d 399, 401 (Iowa 1998).
The trial court's marshalling instruction, incorporating the provisions of Iowa Code section 124.401(4), required the State to prove beyond a reasonable doubt (1) Pickerell knowingly possessed anhydrous ammonia on April 6, 2001, (2) Pickerell knew the substance was anhydrous ammonia, and (3) Pickerell possessed the anhydrous ammonia with the intent to manufacture methamphetamine. Only the third element is contested here.
First, we are convinced the evidence tending to show Pickerell intended to engage in the manufacturing process himself (or together with Sanders) is not sufficient to submit to a jury. The evidence here clearly satisfies the possession element. But, of course, merely possessing a precursor material, by itself, is not enough to establish the intent to manufacture a controlled substance. See United States v. Weston, 4 F.3d 672, 674 (8th Cir. 1993); State v. Morrow, 996 S.W.2d 679, 683 (Mo.Ct.App. 1999).
We agree the circumstances here are such that suspicion is naturally aroused. Pickerell was found stealing anhydrous ammonia in the middle of the night and carrying it away in a relatively small container. It would seem doubtful he intended to put it to any normal agricultural use. This suspicion, however, is insufficient to establish an intent to manufacture a controlled substance. See Weston, 4 F.3d at 675 (circumstances that were "highly suspicious" that precursor "was probably on its way to illegal drug use," insufficient to establish intent to manufacture controlled substance). Nor do we consider discovery of the undisclosed materials in Sanders' purse sufficient to establish an intent to manufacture. The jury could only speculate as to the nature and purpose of those materials. Even the officer thought they were not intended for clandestine use at that time.
There were no other materials or apparatus used in manufacturing found, see Weston, 4 F.3d at 675, nor was there any evidence that either Sanders or Pickerell knew how to manufacture methamphetamine. See Morrow, 996 S.W.2d at 683. In sum, the evidence here would require the jury to speculate that Pickerell intended to engage in the process of manufacturing methamphetamine.
The State's alternative position is that there was substantial evidence Pickerell was going to supply the precursor material to another who was, in turn, going to manufacture methamphetamine and that this is tantamount to manufacturing on Pickerell's part. Pickerell contends he must personally intend to be involved in the actual manufacturing process to satisfy the intent element.
The ultimate goal in interpreting statutory language is to ascertain and give effect to the intention of the legislature. State v. Foster, 356 N.W.2d 548, 550 (Iowa 1984). When a statute's terms are unambiguous and its meaning is plain, this court will not second-guess legislative intent. See State v. Bond, 493 N.W.2d 826, 828 (Iowa 1992). The jury was instructed as to the statutory definition of manufacturing in Iowa Code section 124.101(16). The instruction provided that "`Manufacture' means the production, preparation, propagation, compounding, conversion or processing of a controlled substance." None of these designated processes seem to encompass merely supplying an ingredient to another person. Iowa Code section 124.401(4) provides possession of this precursor is a crime "if the person possesses with the intent to use the product to manufacture any controlled substance." We think the logical interpretation of the phrase "person possesses with the intent to use" is that the possessor must intend to personally "use" the precursor, that is be personally involved in the manufacturing process. To interpret the statute as the State urges would require us to read the statute as if it stated, "if the person possesses with the intent the product be used to manufacture any controlled substance." We conclude the State has not demonstrated Pickerell was engaged in the manufacturing process to the extent required by the statute. See Spivie, 581 N.W.2d at 208 ("In order to establish defendant was engaged in the manufacturing of the marijuana, it was necessary for the State to show he was able to claim immediate dominion over the process, or maintained or shared exclusive dominion over the process.").
The State urges us to consider that interpreting the statute in this fashion would leave a large gap in the coverage of the statute. However, we must confine our search for the intent of the legislature to the words actually used, not those which might have been used. Amana Refrigeration v. Iowa Dep't of Job Serv., 334 N.W.2d 316, 318-19 (Iowa 1983). We think the language the legislature chose is not ambiguous and therefore we need not resort to rules of statutory construction. Iowa West Racing Ass'n v. Iowa Racing Gaming Comm'n, 546 N.W.2d 898, 900 (Iowa 1996). Even if ambiguity is found, we are constrained to strictly construe criminal statutes, First Iowa State Bank v. Iowa Dep't of Natural Res., 502 N.W.2d 164, 167 (Iowa 1993), which persuades us to reach the same result.
We note there is a statute which prohibits conspiracies to manufacture a controlled substance. Iowa Code § 124.401(1). Tampering with anhydrous ammonia equipment is prohibited, as well as transporting it in containers not approved by the secretary of agriculture. Iowa Code § 124.401F(1). We do not believe the public is without recourse in these kinds of situations.
We conclude the State has not proved the defendant possessed a precursor with the intent to manufacture methamphetamine, as prohibited by Iowa Code section 124.401(4), the charged statutory violation. This requires reversal of the conviction and sentence for violation of the habitual offender charge as well. We need not reach the issue of claimed inadequacy of trial counsel.