Opinion
No. 4-388 / 03-0811.
August 26, 2004.
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
Joseph Stephen appeals the judgment and sentence entered upon his convictions for various drug-related crimes. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, John Sarcone, County Attorney, and Robert DiBlasi, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Joseph M. Stephen appeals his convictions for manufacturing a controlled substance, in violation of Iowa Code section 124.401(1)(b)(7) (2001), possession with the intent to deliver a controlled substance, in violation of section 124.401(1)(b)(7), failure to affix a drug tax stamp, in violation of sections 453B.3 and 453B.12, and possession of precursors (ether and lithium) with the intent to manufacture, in violation of section 124.401(4)(c) and (f). We affirm.
I. Background Facts and Proceedings.
On June 23, 2002, Polk County Sheriff's Deputy Keith Romp stopped a truck driven by Stephen. After approaching the truck and noticing a chemical odor and an LP gas tank in the back, Romp handcuffed Stephen and placed him in the patrol car. A subsequent search of the truck turned up the following items: caffeine in powder form, brass valves, plastic baggies, paper towels, a note with writings about money, a Roundup sprayer, wire cutters, a gas can, a black cylinder with a "blued" valve, a container with residue, a red funnel with residue, clear tubing, shop vacuum filters, eight bottles of starter fluid, a coffee grinder, Morton salt containers, two 100 gram weights, a business card with the notation "Bucket Beaters Local Number 8," a funnel with a filter, a jug with a clear liquid, a plastic spatula, lithium batteries, a paper with a map, and a wooden spoon. In one of the buckets, officers discovered "sludge," which was later found to contain 10 grams of methamphetamine. The paper towels, which were later sent to a lab, contained traces of methamphetamine, pseudoephedrine, and guiafenesin. In addition, two containers held a residue with traces indicative of the methamphetamine making process.
Based on this discovery, on July 24, 2002, the State charged Stephen with manufacture of methamphetamine (count I), possession with intent to deliver methamphetamine (count II), failure to affix a drug tax stamp (count III), possession of the precursor anhydrous ammonia with intent to deliver (count IV), and possession of the precursor ether with intent to deliver (count V). On November 26, 2002, the State filed a notice of intent not to prosecute noting that Stephen had stipulated to parole violations and would return to prison. The State then dismissed the case without prejudice.
On January 30, 2003, the State refiled the five counts against Stephen. On April 7, 2003, just prior to trial, the State moved to amend the trial information, which the court granted. The amendment changed count IV from possession of the precursor anhydrous ammonia to possession of the precursor lithium.
Following the trial, the jury returned a verdict finding Stephen guilty as charged. The court sentenced him to a term of incarceration not to exceed twenty-five years on counts I and II, and five years on counts III, IV, and V. The court ordered the sentences to be served concurrently. It also originally granted him credit for time served including the time in jail on a different case. On May 20, 2003, Stephen filed a notice of appeal. On October 20, 2003, the court entered an order regarding credit for time served.
II. Ineffective Assistance of Counsel.
As noted, the trial court allowed the State to amend count IV from possession of the precursor anhydrous ammonia to possession of the precursor lithium. While Stephen was originally arrested on June 23, 2002, the State filed the amendment approximately 288 days later. Although trial counsel did object to the State's motion to amend the trial information on grounds of inadequate notice, Stephen now alleges counsel had a duty to object to the amendment as a violation of his right to a speedy indictment. See Iowa R. Crim. P. 2.33(2)( a) (providing that an indictment must be found within forty-five days of arrest).
To prove ineffective assistance of counsel the defendant must show that counsel failed to perform an essential duty and that prejudice resulted from counsel's error. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Ledezma, 626 N.W.2d 134, 142 (Iowa 2001). In order to prove prejudice, Stephen must show there is a reasonable probability that but for his counsel's unprofessional errors the result of the proceeding would have been different. Strickland, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698; Ledezma, 626 N.W.2d at 143-44.
While we often preserve ineffectiveassistance claims for postconviction proceedings, we consider such claims on direct appeal if the record is sufficient. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). We find the record here to be insufficient to address the claim. We therefore preserve this contention for a possible postconviction relief application in order to allow trial counsel an opportunity to explain his conduct.
II. Sufficiency of the Evidence.
Stephen alleges the evidence was insufficient to prove beyond a reasonable doubt that he possessed ether and lithium with the intent to manufacture methamphetamine and that he did manufacture the same. Our scope of review of sufficiency-of-evidence challenges is for correction of errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). We will uphold a finding of guilt if substantial evidence supports the verdict. State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). Substantial evidence is evidence upon which a rational finder of fact could find a defendant guilty beyond a reasonable doubt. Id. A. Manufacture of Methamphetamine.
The district court instructed the jury that in order to find Stephen guilty of manufacturing methamphetamine, the State had to prove:
1. On or about June 23, 2002, the defendant manufactured or aided and abetted another in the manufacturing of methamphetamine or any compound, mixture, or preparation which contained any quantity or detectable amount of methamphetamine.
2. The defendant knew that the substance manufactured was methamphetamine.
We need not re-catalog the extensive list of materials discovered in Stephen's vehicle: suffice it to say the items were all essential to the manufacture of methamphetamine. One of the investigating officers described Stephen's vehicle as a "rolling meth lab" and subsequent testing showed that the materials contained some measure of methamphetamine.
Stephen does not dispute that he had possession of the items, and in fact concedes "[c]learly the record shows that someone had manufactured methamphetamine using the lithium reduction method." Rather, he claims the State did not prove he was involved in the process. In particular, he claims the evidence establishes that he had merely stolen the items from the actual manufacturers with the intent to sell them back to the owners. He asserts that if he "had actually completed the manufacture process, he would have had the finished product."
The State asserts that the jury reasonably could have concluded Stephen manufactured methamphetamine or aided and abetted in the manufacturing. He was in possession of a large quantity of items which he admits had been used to produce methamphetamine, and they were hidden in several locations within his truck. Methamphetamine itself was found in the sludge. He possessed a "business card" which indicated he was a "bucket beater," a colloquial term used by methamphetamine producers to describe themselves.
While Stephen provided a plausible explanation, the jury's finding that Stephen had manufactured or aided an abetted in the manufacturing of methamphetamine was also permissible based on the facts adduced at trial. Considering that the jury was free to accept or reject any of the evidence, State v. Button, 622 N.W.2d 480, 483 (Iowa 2001), including Stephen's claim he had merely stolen and sought to resell the items, we conclude the record contains substantial evidence in support of the verdict.
B. Possession of Precursors with Intent to Manufacture.
To establish Stephen possessed precursors with the intent to manufacture, the State had to prove:
1. On or about June 23, 2002, the defendant possessed lithium and ether.
2. The defendant knew the substances he possessed were lithium and ether.
3. The defendant possessed this substance with the intent to use it to manufacture a controlled substance.
Under these charges, Stephen again challenges the intent element. Of course, intent is seldom capable of direct proof and may be ascertained by "such reasonable inferences and deductions as may be drawn from the facts proved by the evidence in accordance with common experience and observation." State v. Luter, 346 N.W.2d 96, 101 (Iowa 1984) (quoting State v. Serr, 322 N.W.2d 96, 101 (Iowa Ct.App. 1982)). The fact that some of the essential elements for methamphetamine manufacturing were not found in his truck does not conclusively negate a finding of intent. Furthermore, while the mere possession of a precursor itself may not be enough to establish the intent to manufacture methamphetamine, see United States v. Weston, 4 F.3d 672, 674 (8th Cir. 1993), Stephen possessed many materials commonly used in the manufacture of methamphetamine, clearly much more than a simple precursor. In fact, when arrested he was in possession of "sludge" with detectable amounts of methamphetamine, and as stated, his truck was described as a "rolling meth lab."
Like the preceding division analyzing the sufficiency of the evidence of manufacturing methamphetamine, we conclude substantial evidence supports the possession of precursor convictions. See State v. Heuser, 661 N.W.2d 157, 166 (Iowa 2003) (finding substantial evidence to support a conviction of possession of a precursor with intent to manufacture methamphetamine where defendant possessed a large quantity of cold relief tablets along with lithium batteries).
IV. Credit for Time Served.
Finally, Stephen contends the court erred in failing to properly give him credit for time served. As previously noted, the court originally granted him credit for time served. On October 20, 2003, the district court entered an additional order regarding time served, which Stephen now argues was in error. However, because this order was entered well after the notice of appeal was filed in this case, May 5, 2003, we do not have jurisdiction to consider this issue.