Opinion
No. 3-377 / 02-0904
Filed August 27, 2003
Appeal from the Iowa District Court for Polk County, Arthur E. Gamble and Robert J. Blink, Judges.
Weatherly appeals his conviction for conspiracy to manufacture methamphetamine. AFFIRMED IN PART AND REVERSED IN PART.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Andrews, Assistant Attorney General, John Sarcone, County Attorney, and Stephanie Cox, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
A jury found John Arthur Weatherly guilty of conspiring to manufacture methamphetamine and other crimes. On appeal, he claims the evidence was insufficient to support the jury's finding of guilt on the conspiracy conviction. We agree.
I. Background Facts and Proceedings
A jury could have found the following facts. Early one morning, Des Moines police officers "smelled a distinct odor of ether coming from the vicinity of" a local motel. As they began searching for the source of the smell, they saw a woman and a man, later identified as Weatherly, leaving a room. One of the officers noticed that Weatherly smelled of ether. He asked Weatherly where he had been and Weatherly identified an upstairs room. As the officers approached that room, they again smelled ether and observed a garbage can with what appeared to be "remnants of possible meth-making materials." They advised back-up officers downstairs to handcuff Weatherly and the woman but, before they had a chance to restrain Weatherly, he fled, sliding out of his coat as he did so.
Officers pursued and apprehended Weatherly. They uncovered no drugs or contraband on his person but, inside his discarded coat, found the bottom of a plastic soda bottle containing a crumpled coffee filter.
Meanwhile, one of the officers upstairs obtained consent to enter the room under surveillance. He found a methamphetamine-making laboratory.
The State charged Weatherly with conspiracy to manufacture methamphetamine and other crimes not at issue here. Iowa Code § 124.401(1)(b)(7) (2001). A jury found him guilty on the conspiracy count and two other counts and the district court sentenced him to prison. This appeal followed.
II. Sufficiency of the Evidence-Conspiracy Count
The jury was instructed that the State would need to prove the following:
1. On or about February 12, 2002, the Defendant agreed with his co-conspirator,
A. That one or more of them would commit the crime of Manufacturing a Controlled Substance, or solicit another to Manufacture a Controlled Substance; or
B. Attempt to Manufacture a Controlled Substance.
2.The defendant entered into the agreement with the intent to promote or facilitate the Manufacture of a Controlled Substance.
3. The Defendant or his co-conspirator committed an overt act.
4. The co-conspirator was not a law enforcement agent investigating the Manufacture of a Controlled Substance or assisting law enforcement agents in the investigation when the conspiracy began.
The jury was further instructed:
If the State has proven all of the elements, the defendant is guilty of Conspiracy to Manufacture a Controlled Substance. If the State has failed to prove any of the elements, the defendant is not guilty.
Weatherly contends the State failed to present substantial evidence of an agreement to manufacture methamphetamine. See State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000) (setting forth standards governing challenge to sufficiency of evidence). We agree.
Weatherly was apprehended outside the room containing the methamphetamine laboratory. Nothing inside the room tied him to the manufacture of methamphetamine, to the woman apprehended with him, or to a person in the room. As for the evidence in his coat, a State criminalist testified that no methamphetamine residue was found on the coffee filter.
While the State correctly points out that Weatherly smelled of ether, admitted to coming from the room containing the methamphetamine lab, and fled from the scene, our highest court has held these facts insufficient to support a conspiracy conviction. See State v. Speicher, 625 N.W.2d 738, 742-43 (Iowa 2001). We believe Speicher is controlling.
III. Disposition
We reverse Weatherly's conviction for conspiracy to manufacture methamphetamine. Weatherly has not appealed his other convictions arising from the same incident. Those convictions, therefore, are affirmed.
Weatherly raises several ineffective-assistance-of-counsel claims. In light of our disposition, we need not address these claims.