Opinion
No. 5-642 / 04-1813
Filed November 9, 2005
Appeal from the Iowa District Court for Shelby County, Jeffrey L. Larson, Judge.
Jeff Quist appeals from his convictions and sentences for possession with intent to deliver methamphetamine, failure to affix a tax stamp, and possession of marijuana. AFFIRMED.
Linda Del Gallo, State Appellate Defender and James G. Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, and Marcus Gross, County Attorney, for appellee.
Considered by Mahan, P.J., and Hecht and Vaitheswaran, JJ.
A Harlan police officer was about to arrest Jeff Quist on outstanding warrants, when Quist fled. The officer gave chase. After apprehending Quist, he summoned a drug-sniffing dog. The dog retraced the path Quist took and discovered a bag containing methamphetamine and marijuana. A warrant subsequently executed on Quist's bedroom revealed more drugs and drug-related items.
The State charged Quist with possession with intent to deliver methamphetamine, failure to affix a tax stamp, possession of marijuana, and interference with official acts. Iowa Code §§ 124.401(1)(b)(7), 453B.12, 453B.3, 124.401(5), 719.1(1) (2003). A jury found him guilty as charged.
On appeal, Quist contends: (1) there was insufficient evidence to support the findings of guilt on the drug-related counts, (2) the district court abused its discretion in admitting evidence of a prior drug conviction, and (3) trial counsel was ineffective in failing to object to evidence. We affirm.
I. Sufficiency of the Evidence
Quist contends the district court erred in rejecting his challenge to the sufficiency of the evidence supporting the methamphetamine, drug tax stamp, and marijuana charges. The State responds that Quist failed to preserve error on his challenge to the marijuana count. We agree. See State v. Grosvenor, 402 N.W.2d 402, 406 (Iowa 1987) (stating contention not raised by way of motion for judgment of acquittal cannot be raised on appeal). Quist contested the State's evidence on the first two counts but did not mention the marijuana count. Therefore, we will only address the methamphetamine and drug tax stamp counts. We will uphold the jury's findings of guilt on these counts if they are supported by substantial evidence. State v. Henderson, 696 N.W.2d 5, 7 (Iowa 2005).
A. Possession of Methamphetamine with Intent to Deliver
The jury was instructed that the State would need to prove the following elements:
1. On or about the 29th day of April, 2004, the defendant knowingly possessed methamphetamine.
2. The defendant knew that the substance he possessed was methamphetamine.
3. The defendant possessed the substance with the specific intent to deliver a controlled substance.
The jury was further instructed that possession included "[a]ctual as well as constructive possession." The court defined "actual possession" as "physical control of something on or around his person" and "constructive possession" as "knowledge of the presence of something" and "the authority or right to maintain control over it."
Quist only challenges the possession component of the crime. He contends there was no evidence he was in actual possession of the drugs and the factors that might have supported a finding of constructive possession were not present. A jury could have found otherwise.
The police officer who approached Quist about the outstanding warrants testified Quist was "extremely nervous" andimmediately put his left hand in his left pocket. The officer instructed Quist to remove his hands and place them on the patrol car. Quist put his right hand on the car but kept his left hand in his pocket until the officer repeated the instruction. At this juncture, Quist removed and placed his left hand on the car for a "split second." He then jammed his body into the officer and took off running.
In the ensuing chase, Quist's left hand remained in his pocket. As Quist rounded a corner, the officer briefly lost sight of him. When the officer saw him again, Quist's running had slowed from a sprint to a jog, and he no longer had his left hand in his pocket. The officer arrested and searched Quist. He found $330 in cash.
The drug-sniffing dog later found a bag underneath a bush. It was not dirty or weathered and did not appear to have been lying on the ground for long. The bag contained methamphetamine.
Officers subsequently executed a search warrant on Quist's bedroom. They found numerous items related to the use and manufacture of methamphetamine. Quist's girlfriend, who was in the bedroom at the time of the search, denied the items were hers. A jury reasonably could have found from these facts that Quist "possessed" methamphetamine. See State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993) ("Admissions may be implied by the conduct of the defendant subsequent to the crime . . . when such conduct indicates a consciousness of guilt.").
We recognize no fingerprints linked Quist to the substance, but the absence of this evidence is not dispositive. See State v. Acevedo, ___ N.W.2d ___, ___ (Iowa 2005) (stating direct and circumstantial evidence are equally probative). As for evidence contradicting the officer's version of events, the jury was free to discredit that evidence. State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). Given the substantial evidence of possession, the district court did not err in denying Quist's motion for judgment of acquittal on the methamphetamine count.
B. Drug Tax Stamp
The jury was instructed that the State would have to prove the following:
1. On or about the 29th day of April, 2004, the defendant knowingly possessed a taxable substance as defined in Instruction # 19.
2. Defendant possessed in this state seven or more grams of methamphetamine.
3. The taxable substance that Defendant possessed did not have permanently affixed to it a stamp, label or other official indication of payment of the state tax imposed on the substance.
We have found substantial evidence of possession of methamphetamine. Evidence was introduced that the amount exceeded seven grams. We accordingly conclude the district court did not err in denying Quist's motion for judgment of acquittal on the drug tax stamp count.
II. Prior Drug Conviction
Quist argues that the district court abused its discretion in denying his motion to exclude his prior conviction for possession with intent to deliver marijuana. He contends the evidence was unfairly prejudicial because the prior conviction was for the same type of offense for which he was on trial. The State counters that error was not properly preserved. We disagree, and proceed to the merits of the court's ruling.
The district court ruled as follows:
The Court will allow introduction of that one conviction. I believe it is, first of all, relevant; and I don't think its probative value is outweighed by its danger of unfair prejudice. I will, though — and I intend to offer a cautionary instruction to the jury making sure that it's clear to them that the evidence is to be considered only for those 404B purposes.
As the court noted, Iowa Rule of Evidence 5.404(b) governs this issue, but only if the court first determines the evidence is relevant. Evidence is relevant when it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Iowa R. Evid. 5.401. The State urges that the prior conviction is relevant to show Quist knew what marijuana was and to show his intent to deliver. We disagree.
Although the State had to prove Quist knew one of the substances he possessed was marijuana, this element was not at issue. Quist's defense rested on showing he did not possess marijuana, not that he did not know what it was. Because proof of knowledge was not contested, we reject this relevancy ground. See State v. Sullivan, 679 N.W.2d 19, 28 (Iowa 2004) (finding evidence of prior drug crime irrelevant and inadmissible because prosecutor did not articulate valid, non-character theory of admissibility); cf. Henderson, 696 N.W.2d at 11(finding evidence of prior drug crime admissible to show knowledge that substance was marijuana).
As for the State's second proffered ground, we agree intent was an element of the methamphetamine count. We disagree that Quist's prior drug conviction was probative of intent. To accept that argument, one would have to accept the underlying premise that a defendant who previously harbored an intent to deliver drugs still harbors an intent to deliver. Sullivan, 679 N.W.2d at 29. The Iowa Supreme Court has rejected this premise. Id. Accordingly, we conclude Quist's prior drug conviction was not relevant to show intent.
Our inquiry does not end here, as reversal is not required if the district court's erroneous admission of evidence was harmless. Iowa R. Evid. 5.103 ("[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected"); Henderson, 696 N.W.2d at 10. To decide whether a non-constitutional error was harmless, we ask, "Does it sufficiently appear that the rights of the complaining party have been injuriously affected by the error or that he has suffered a miscarriage of justice?" Sullivan, 679 N.W.2d at 29.
We believe the prior conviction was inherently prejudicial, as a jury could have leapt to the impermissible conclusion that, if Quist previously intended to deliver drugs, he presently intended to deliver drugs. Id. at 30. However, the properly admitted evidence supporting the drug charges was overwhelming. Drugs were found along the path Quist traveled and in his bedroom. The quantity was significant. "[W]ell-recognized indicia of drug-dealing," were found in the bedroom and a significant amount of cash was found in Quist's possession. Id. at 31. Given this extensive admissible evidence of guilt, we conclude Quist's substantial rights were not affected and the error in admitting Quist's prior conviction was harmless.
III. Ineffective Assistance of Counsel Claim
Quist argues his trial counsel provided ineffective assistance when he failed to object to an exhibit. Our review is de novo. Taylor v. State, 352 N.W.2d 683, 684 (Iowa 1984). Quist must show (1) trial counsel failed to perform an essential duty and (2) this omission resulted in prejudice. Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066, 80 L. Ed. 2d 674, 695 (1984).
At issue is an evidence/property control inventory form listing items found in the bag, in Quist's possession, and in his bedroom. Quist attempts to analogize the exhibit to an "evidence tag." In some instances, our courts have held that the admission of evidence tags was reversible error. See State v. Martin, ___ N.W.2d ___, ___ (Iowa 2005) (summarizing evidence tag precedent). In this instance, we conclude admission of the exhibit does not require reversal because Quist did not establish Strickland prejudice. As in Martin, the exhibit simply described the chain of custody of items seized from Quist or his surroundings. The exhibit did not "encapsulat[e] the State's case." Id. at ___. In addition, as the State's evidence was overwhelming, there was not a reasonable probability that the outcome would have changed had counsel objected to the inventory exhibit on the ground that it was an inadmissible evidence tag.
IV. Disposition
We affirm Quist's convictions and sentences.