Opinion
No. 4-184 / 03-0167
May 26, 2004.
Appeal from the Iowa District Court for Cerro Gordo County, James M. Drew, Judge.
Jerry Dean Smith appeals his conviction for manufacturing more than five grams of methamphetamine. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, and Paul Martin, County Attorney, for appellee.
Considered by Miller, P.J., and Hecht, J., Brown, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
A jury convicted Jerry Dean Smith of manufacturing more than five grams of methamphetamine. The determinative issue before us is whether there is sufficient evidence to support the conviction. The question is raised both on direct appeal and as an ineffective-assistance-of-counsel claim. An additional ineffective-assistance claim is also asserted, which we do not decide.
I. Background facts and proceedings.
In July 2002, a resident of an apartment building in Mason City, Iowa complained to the police of a strong odor of ammonia in the building. Police officer Ryan Miller stationed himself in her apartment where he had a view of another apartment occupied by Terry Schaer in the same building across a rooftop. He could see into the other apartment's dining/living room area, but not into the other rooms. There was a garbage can with a plastic bag inside it outside the other apartment's kitchen window with its lid turned upside down. The smell of ammonia in the building was very strong.
Miller observed Schaer, Michael Porter, Kevin Lansaw, and the defendant, Jerry Smith, in the other apartment. It appeared Smith and Schaer were having a conversation. Smith raised what Miller thought was a clear glass Mason jar with about an inch of clear fluid in it and, according to Miller, "kind of like swish[ed] it around, you know, in front of Terry Schaer's face." The two then went in the kitchen, out of Miller's sight, with Schaer carrying the jar.
About five to ten minutes later, Officer Miller saw an unidentified arm extend out the kitchen window and pour something on top of the garbage can lid. Miller first said the container poured from was not the clear glass jar, but a green or blue-colored glass jar. He later testified he could not tell if the jar poured from by Schaer was the same clear glass jar handed Schaer by Smith or not. A jar with blue-green fluid in it was recovered later, as well as a clear jar. Miller said it was not likely that the fluid in the clear glass jar was ether, because of ether's volatility, but noted the odor of ammonia became stronger and he observed vapors coming off the fluid poured into the can lid. Porter, Lansaw, and Smith then left the apartment, but before they left Miller heard coughing coming from the apartment and fans running in the apartment.
After Smith and the others left, Miller saw Schaer put a plastic bowl out on the garbage can lid which appeared to have a fluid in it. Schaer then intermittently poured fluids into the bowl, causing a strong ammonia odor and vapor. Schaer also brought the bowl back into the apartment periodically and then replaced it back outside. Miller heard Schaer say "This is going to work."
Approximately one half hour to forty-five minutes later, Lansaw returned to the apartment. Officer Miller heard him comment to Schaer that he thought it would make more than that. About fifteen minutes after Lansaw got there, Porter and Smith returned to the apartment. About a minute later, the police arrived and announced their presence. As Schaer was going to the door to unlock it, the police forced an entry into the apartment. According to Miller, Smith and Porter ran towards the back of the apartment and Lansaw ran past the dining room window. All four were arrested and a search of the apartment was conducted. The apartment was sparsely furnished and there was no bed in the bedroom. The only place to sit was in the living room. The search disclosed the presence of all the necessary materials, in one form or another, for making methamphetamine. A bottle containing two distinct layers of liquid was found in the kitchen in plain view. The bottle was fitted with a filter on its top, suitable for use in producing methamphetamine. One of the liquid layers weighed 75.6 grams and contained methamphetamine. A salad bowl-like vessel was found in the kitchen sink containing what one witness characterized as "pretty much a cook in progress right there." A clear glass jar, identified by Miller as similar to the one he observed Smith swishing liquid around in, and containing the amount of liquid in it Miller had noted, was later found to have methamphetamine residue in it. Expert testimony explained how it had been used in the manufacturing process. Other paraphernalia and items commonly used in making methamphetamine were located in the living room, in plain sight of anyone in that room. A trash bag was found in the bathtub with discarded materials used in methamphetamine production in it.
A "cook" in the language of drug producers is a generic term for the whole process of making methamphetamine.
A search of Smith did not reveal any precursors or drug paraphernalia, nor did Officer Miller observe him bring any such material into the apartment. The only fingerprints on any of the containers or jars found in the apartment were Schaer's. Smith, who was unemployed and receiving disability benefits, had $503.62 in cash on his person at the time.
A controlled substance expert for the State opined that methamphetamine had been manufactured in the apartment, but was not able to say that it was manufactured on the day in question.
Smith was charged with manufacturing or conspiring to manufacture more than five grams of methamphetamine, see Iowa Code section 124.401(1)(b)(7) (2001), a class B felony, and possession of a precursor with intent to manufacture a controlled substance, see id. at section 124.401(4), a class D felony. The manufacturing charge was submitted both under the theory of conspiracy and aiding and abetting. The jury returned a general verdict of guilty to the manufacturing charge and not guilty on the possession of a precursor charge. Smith now appeals, alleging the evidence was insufficient to submit the manufacturing charge either as a conspiracy or aiding and abetting.
II. Preservation of error.
Although the defendant moved for a directed verdict at an appropriate time, he asserted only that the State had failed to prove all of the elements of the offense beyond a reasonable doubt. Such a general allegation, without specifying in what respect the evidence is lacking, is not sufficient to preserve error. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). However, since ineffective assistance of counsel may excuse the application of the usual error preservation rules, State v. Stallings, 658 N.W.2d 106, 108 (Iowa 2003), we will consider the sufficiency-of-the-evidence challenge under that branch of defendant's appeal.
III. Sufficiency of the evidence.
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). 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. IV. Ineffective assistance of counsel.
We will decide claims of ineffective counsel presented here for the first time if the record is sufficient for us to do so. State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). That is the case regarding the sufficiency-of-the-evidence claim. To establish ineffective assistance, a defendant must show by a preponderance of the evidence that trial counsel failed to perform an essential duty, and prejudice resulted. State v. Begey, 672 N.W.2d 747, 749 (Iowa 2003). Failure to adequately preserve error may violate an essential duty, if prejudice is also demonstrated. State v. Iowa District Court, 464 N.W.2d 244, 246 (Iowa 1990).
A. Conspiracy to manufacture methamphetamine.
One of the alternate theories the jury considered was that Smith conspired with another to manufacture methamphetamine. This requires the State prove beyond a reasonable doubt that Smith agreed with another person that one of them would manufacture or attempt to manufacture methamphetamine, that Smith intended to promote or facilitate the manufacturing process, and that an overt act was committed in furtherance of the conspiracy. The focus here is on whether there was an agreement and the requisite intent.
The defendant concedes the evidence shows the apartment was a methamphetamine laboratory and that Terry Schaer was involved at some point in the manufacture of methamphetamine. Schaer's conviction of that charge was affirmed by this court in State v. Schaer, No. 3-947/03-0398 (Iowa App. Jan. 28, 2004) (unpublished opinion).
A conspiracy is 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. The conspiracy does not depend on the fulfillment of the agreement, only that there is an agreement. And the agreement may be established by either direct or circumstantial evidence.
State v. Ross, 573 N.W.2d 906, 914 (Iowa 1998). Importantly, the agreement need not be an explicit one; it may be inferred from circumstances. State v. Map, 585 N.W.2d 746, 748 (Iowa 1998). It may consist of a tacit understanding and be inferred from all the circumstances shown and the conduct of the parties involved. State v. Casady, 597 N.W.2d 801, 805 (Iowa 1999).
Two recent cases with somewhat similar factual patterns are instructive on the question of an agreement to manufacture methamphetamine. In State v. Speicher, 625 N.W.2d 738 (Iowa 2001), defendant Speicher, together with another person, was seen coming from a building, later determined to house a methamphetamine manufacturing setup operated by the other man. When the police attempted to stop them, they both ran. Our court rejected Speicher's sufficiency-of-the-evidence challenge and upheld his conspiracy conviction, but it was overturned on further review by our supreme court. Id. at 742-43. The court observed that finding two people together at a methamphetamine lab, both smelling of ether, who then ran when approached by the police is not sufficient to establish an agreement, even where it is later determined that one of them was associated with the drug manufacturing process. Id. at 743.
Ether is used in the process of manufacturing methamphetamine.
In contrast, the supreme court found the evidence was sufficient to establish an agreement in State v. Weatherly, ___ N.W.2d ___, (Iowa 2004), again disagreeing with our court which, based primarily on Speicher, had found the evidence insufficient. In Weatherly, officers were attracted to a motel because of the smell of ether. The defendant, Weatherly, and a companion were walking away from a room when stopped by police. They both smelled of ether. Weatherly slipped out of the coat he was wearing and ran away. The officers later determined the room from which Weatherly was leaving contained all the ingredients and apparatus for manufacturing methamphetamine.
The supreme court found additional factors present in Weatherly, which served to distinguish it from Speicher. These included (1) finding the bottom half of a plastic bottle in Weatherly's coat he abandoned, containing a coffee filter smelling of ether, (2) the fact that another had rented the room from which he was leaving, and which was obviously rented only for the purpose of manufacturing methamphetamine, and (3) that Weatherly made statements which implied other persons were involved in the manufacturing process in the motel room. Weatherly, ___ N.W.2d at ___.
To determine whether a conspiracy exists in a particular situation requires a close look at the circumstances, as the existence of a conspiracy is generally fact-dependant. Id. at ___. Weatherly teaches that more is required than the presence of two persons at or near a place used to make methamphetamine followed by flight. But, as in Weatherly, we think there are several factors present in this case which permitted the jury to conclude Smith conspired with Schaer, and perhaps others, to manufacture methamphetamine.
First, we note there is considerable evidence from which the jury could find the process of manufacturing methamphetamine was going on during the time that Smith was in the apartment. We recognize the State's chemist could not state whether the process was underway at the time, only that it had taken place. However, the activities of Schaer in repeatedly pouring liquids into the lid on the garbage can, observed by officer Miller; the statements of Lansaw and Schaer overheard by Miller; the coughing and sound of fans running in the apartment; the bottle containing liquids, one of which had methamphetamine in it, sitting in plain view in the kitchen; the other manufacturing paraphernalia openly sitting around in the apartment; and the strong odor of ammonia originating from the apartment while Smith and the others were there all point to an ongoing "cook" during the relevant time period.
But was there evidence of an agreement, tacit or express, between Smith and Schaer concerning the manufacture of methamphetamine? Smith swished a clear glass jar containing a quantity of liquid in front of Schaer, then handed it to Schaer. Shortly after that, Miller observed an arm pouring a liquid into the garbage can out the kitchen window. More importantly, Miller identified a clear glass jar with the same quantity of liquid in it, similar to the one exchanged between Smith and Schaer, which was later determined to have methamphetamine in it. The jury could easily have concluded the jar identified by Miller and later found to contain methamphetamine was in fact the same jar exchanged between Smith and Schaer.
Of importance in Weatherly was that the location of the methamphetamine-making was in a motel room rented by someone other that the defendant. Weatherly, ___ N.W.2d at ___. The court concluded the primary use of the room was to make methamphetamine. So too here. The apartment had little furniture in it and no bed in the bedroom. It appeared to have had little function other than for the production of controlled substances.
We think the jury was acting well within the bounds of reason in concluding there was substantial evidence Smith was involved in a conspiracy to manufacture methamphetamine.
The defendant also challenged the sufficiency of the evidence to prove he intended to promote or facilitate the manufacturing process. We think the evidence we have already cited is sufficient to allow the jury to conclude Smith had the requisite intent. Intent, after all, is an intangible concept, seldom capable of direct proof, State v. Evans, 671 N.W.2d 720, 724-25 (Iowa 2003), and the jury was so advised. The circumstances taken altogether are clearly adequate to support the jury's decision.
V. Aiding and abetting the manufacture of methamphetamine.
The jury was instructed on the alternate theory of aiding and abetting the manufacture of methamphetamine. They were advised it was not necessary for them to decide which theory applied as long as they unanimously agreed the State had proved one alternative or the other beyond a reasonable doubt. Since we do not know which theory was used by the jury, we must examine the evidence to determine whether it is sufficient to also support conviction of Smith as an aider and abettor. See State v. Williams, 674 N.W.2d 69, 71 (Iowa 2004) (holding if alternative theories submitted and general verdict returned, all theories submitted must be supported by substantial evidence).
To return a verdict of guilty based on aiding and abetting the jury was instructed it must find proof beyond a reasonable doubt Smith aided and abetted the manufacture of methamphetamine, and Smith knew the substance he aided and abetted was methamphetamine. The jury was told:
"Aid and abet" means to knowingly approve and agree to the commission of a crime, either by active participation in it or by knowingly advising or encouraging the act in some way before or when it is committed. Conduct following the crime may be considered only as it may tend to prove the defendant's earlier participation. Mere nearness to, or presence at, the scene of the crime, without more evidence, is not "aiding and abetting." Likewise, mere knowledge of the crime is not enough to prove "aiding and abetting."See I Iowa Criminal Jury Instruction 200.8 (1988).
As noted earlier, there was ample evidence for the jury to find the process of manufacturing methamphetamine was ongoing during the time Smith was present in the apartment and that Smith must have been aware of it. We likewise believe Smith's exchange of the methamphetamine-containing glass jar with Schaer provided sufficient evidence of Smith's advice or encouragement, if not his active participation, in the manufacturing process for the jury to conclude Smith was an aider and abettor. Smith's conduct after the police arrived bolsters such a conclusion. He fled to the bedroom, apparently attempting to elude the officers. He also had a fairly substantial sum of money with him for an unemployed, disabled person. The testimony disclosed carrying significant amounts of cash is a sign of participation in illicit drug activity.
VI. Other ineffective-assistance claim.
Smith also claims his trial counsel was ineffective for failing to call certain witnesses, who he claims would have exonerated him. We agree with the parties that the record is inadequate to resolve this issue, and we preserve it for possible future action.
VII. Summary.
Although counsel's trial motions did not adequately preserve error on defendant's sufficiency-of-the-evidence claim, we have considered it as an ineffective assistance of counsel claim. There was sufficient evidence to submit both conspiracy to manufacture methamphetamine and aiding and abetting the manufacture of methamphetamine to the jury. Consequently, the jury's verdict of guilty of manufacturing methamphetamine and the court's judgment and sentence for that offense are affirmed.
The defendant's claim his trial counsel was ineffective for failing to call certain witnesses is preserved for possible postconviction relief action.