Opinion
No. 5-220 / 04-0817
Filed May 11, 2005
Appeal from the Iowa District Court for Lee (South) County, R. David Fahey, Judge.
Susan Marie Carr appeals the judgments and sentences entered following her convictions for manufacture of methamphetamine, possession of precursors with the intent to manufacture, keeping a drug house, and possession of anhydrous ammonia. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell-Douglass, Assistant Attorney General, and Michael P. Short, County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Miller, JJ.
Susan Marie Carr appeals the judgments and sentences entered following her convictions for manufacture of methamphetamine, in violation of Iowa Code section 124.401(1)( b)(7) (2003); possession of precursors with the intent to manufacture a controlled substance, in violation of Iowa Code section 124.401(4); keeping a drug house, in violation of Iowa Code section 124.402(1)( e); and possession of anhydrous ammonia, in violation of Iowa Code section 124.401F. She contends she received ineffective assistance of counsel in several respects. We affirm.
I. Background Facts Proceedings.
On July 27, 2003, the Keokuk Police Department executed a search of Carr's residence. When the officers entered the premises, a strong chemical odor permeated the house. The ensuing search revealed countless evidence of controlled substance production and use. Among the items seized were an active methamphetamine (meth) lab leaking hydrogen chloride gas, burnt aluminum foil, razor blades, and snort tubes. Coffee filters containing sludge, packages of lithium batteries, seven containers of iodized salt, boxes of pseudoephedrine, starting fluid for diesel trucks, and an empty container of drain opener were also uncovered. Law enforcement officials further located four anhydrous ammonia containers in Carr's garage. Several Coleman fuel cans, blister packs, and lithium battery cores were also located in a burn barrel near the garage. Additionally, the officers uncovered less than a gram of marijuana inside the home.
The list of items seized by law enforcement officials was eleven pages long.
Sludge is a byproduct of meth production.
On August 6, 2003, the State charged Carr with manufacture of methamphetamine, unlawful possession of explosives, possession of precursors with the intent to manufacture, keeping a drug house, possession of anhydrous ammonia, and possession of marijuana. A jury trial commenced on March 16, 2004. The testimony elicited during trial was largely contradictory. Carr admitted that numerous people came to her house to use meth. However, she denied knowing that certain individuals manufactured meth at her house until shortly before her arrest. Other witnesses testified that Carr knew about the manufacturing operation and allowed them to cook on her property in exchange for half of every batch produced. Carr further testified that she did not know how to cook meth. However, Russell Tallman, a meth addict who cooked at the Carr residence, testified that he showed Carr how to filter and "rebubble" meth from coffee filter sludge. The State's theory of the case was that Carr acted either as a principal or an aider or abettor to the charged crimes. The court instructed the jury on both theories accordingly. The jury found Carr not guilty of possession of marijuana, but guilty on all of the remaining counts. On April 26, 2004, the district court sentenced Carr to a term of incarceration not to exceed twenty-five years, with the one-third mandatory minimum imposed, for her conviction of manufacturing methamphetamine. She was also sentenced to serve five years of imprisonment for her conviction of possessing precursors, two years of incarceration for her conviction of keeping a drug house, and one year in prison for her conviction of possessing anhydrous ammonia. The district court ordered the terms of incarceration to be served concurrently. Carr appeals.
Prior to submitting the charges to the jurors, the court removed the unlawful possession of explosives charge from their consideration.
II. Standard of Review.
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty and (2) prejudice resulted to the extent it denied the defendant a fair trial. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). In proving the first prong, the defendant faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second-guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second prong is satisfied if a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceedings would have been different. State v. Hildebrant, 405 N.W.2d 839, 841 (Iowa 1987). Ordinarily we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). "Even a lawyer is entitled to his day in court, especially when his professional reputation is impugned." State v. Coil, 264 N.W.2d 293, 296 (Iowa 1978). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998).
III. Ineffective Assistance of Counsel.
Carr asserts her trial counsel was ineffective for failing to make a specific motion for judgment of acquittal with respect to the charges of possession of a precursor and keeping a drug house. She further contends counsel was ineffective in failing to object to the jury instruction on keeping a drug house. Finally, she avers counsel was ineffective in failing to adequately explain the penalty for manufacture in excess of five grams of methamphetamine. We will address of each Carr's arguments in turn.
A. Carr first contends trial counsel was ineffective for failing to make a specific motion for judgment of acquittal with respect to the charge of possession of precursors with the intent to manufacture methamphetamine. She claims the evidence presented at trial was insufficient to demonstrate that she possessed the specific intent to manufacture methamphetamine. At the time Carr was charged, Iowa Code section 124.401(4) stated that a person who possessed a precursor to methamphetamine "commits a class `D' felony, if the person possesses with the intent to use the product to manufacture any controlled substance." (emphasis added). Carr relies upon the reasoning set forth in State v. Truesdell, 679 N.W.2d 611, 618 (Iowa 2004), and State v. Pickerell, 662 N.W.2d 371 (Iowa Ct.App. 2003) (unpublished table decision), available at 2003 WL 183392. In Truesdell, our supreme court held that Iowa Code section 124.401(4) (2003) was "directed at the intent of the possessor to use the product to manufacture a controlled substance, not the mere knowledge or belief of the possessor that the product would be used to manufacture a controlled substance." Truesdell, 679 N.W.2d at 618. The court found this type of intent lacking where the evidence only established that the defendant left a grocery store with seventy boxes of pseudoephedrine. Id. at 619. The court pointed out that under the facts of Truesdell's case, two inferences were equally probable. Id. at 618. First, that Truesdell himself intended to manufacture meth. Id. Second, that Truesdell reasonably knew the cold medication would be used by someone else to manufacture meth. Id. Ultimately, the court determined that possession of a precursor, without additional direct or circumstantial evidence, was insufficient to sustain a conviction for possession with intent to manufacture. Id. at 619 (citing United States v. Weston, 4 F.3d 672 (8th Cir. 1993)). Under this framework, Carr contends her counsel breached an essential duty by failing to challenge proof of her intent to manufacture in a motion for judgment of acquittal. We disagree. We believe Carr's situation is entirely distinguishable from the factual situation addressed in Truesdell. There, the defendant possessed only one type of precursor to methamphetamine. Id. at 619. Consequently, without more evidence, it was impossible to tell whether the defendant in that case intended to use the product to manufacture methamphetamine or whether he intended to deliver the product to someone else, who would then use the product to manufacture methamphetamine. Id. at 618. In other words, there was no additional evidence demonstrating the defendant's intent to be personally involved in the manufacturing process. See id. at n. 2 (citing Pickerell, 662 N.W.2d 371 (Iowa Ct.App. 2003) (unpublished table decision), available at 2003 WL 183392).
Our legislature has since amended section 124.401(4) to prohibit possession of a precursor "with the intent that the product be used to manufacture any controlled substance." Iowa Code § 124.401(4) (2005).
We believe the facts of Carr's case are entirely distinguishable because of the presence of additional evidence demonstrating Carr's intent to manufacture meth. As detailed above, officers found countless evidence of meth production both inside and outside Carr's home. Based on the overwhelming presence of methamphetamine precursors, ingredients, manufacturing equipment, and usage paraphernalia that were found in Carr's home, substantial evidence supported the conclusion that Carr intended to use the precursors to manufacture meth. See, e.g., State v. Heuser, 661 N.W.2d 157, 166 (Iowa 2003) (finding substantial evidence supported conviction of possession of a precursor with intent to manufacture meth based upon the possession of a large amount of cold tablets and the existence of additional evidence). Because the facts of this case are distinguishable from Truesdell and Pickerell, we conclude counsel was not ineffective for failing to raise this meritless issue in a motion for judgment of acquittal. See State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999) ("Counsel is not ineffective when the issue counsel failed to raise has no merit.").
Furthermore, although we find the evidence supports Carr's conviction as a principal, unlike Truesdell and Pickerell, the State also charged Carr under an aiding and abetting theory. Truesdell, 679 N.W.2d at 618 n. 3; see also Pickerell, 662 N.W.2d 371 (Iowa Ct.App. 2003) (unpublished table decision), available at 2003 WL 183392. Under Iowa law, a person is guilty of aiding and abetting in a crime when that person assents to or lends countenance and approval to another's criminal act either by active participation or by encouraging it in some manner prior to or at the time of commission. State v. Lott, 255 N.W.2d 105, 107 (Iowa 1977), overruled on other grounds by State v. Allen, 633 N.W.2d 752 (Iowa 2001). An aider and abettor is not required to possess the intent to commit the crime, but is only required to have knowledge that the perpetrator possesses such intent. Id. at 109. Therefore, as an aider and abettor, Carr was not required to possess the intent to commit the crime, but only had to have knowledge that the perpetrator possessed such intent. See State v. Lockheart, 410 N.W.2d 688, 693 (Iowa Ct.App. 1987) (citing Lott, 255 N.W.2d at 109). Carr admitted at trial that she was aware individuals were using and producing meth at her home. The testimony of the other witnesses at trial established that Carr allowed them to use her home to manufacture meth in exchange for a portion of whatever was produced. Under the facts of this case, Carr, at a minimum, aided and abetted others who possessed precursors with the specific intent to manufacture meth.
Carr asserts that a footnote in Truesdell precludes the argument that she could be convicted as an aider and abettor. We disagree. Footnote three of the Truesdell opinion states as follows:
The State did not prosecute Truesdell under an aiding and abetting theory, or under a conspiracy theory. Additionally, we do not believe possession of cold medication with the intent to deliver it to a meth manufacturer would fall within the "intent to use the product to manufacture any controlled substance" language. See Iowa Code § 124.101(16) (defining the term "manufacture" for purposes of chapter 124).
Truesdell, 679 N.W.2d at 618 n. 3 (emphasis added). We do not read the emphasized text of this footnote as precluding conviction of a defendant under an aiding and abetting theory under the facts of this case. As our discussion above indicates, this case is wholly inapposite to the facts involved in Truesdell. Assuming arguendo, that the defendant in Truesdell possessed a precursor with the intent to deliver it to a meth manufacturer, he was apprehended before he could complete the act. Therefore, the act of aiding and abetting another's possession of a precursor with the intent to manufacture a controlled substance was never completed. The person who possessed the intent to manufacture, never possessed the precursors at issue. However, the facts of Carr's case are distinguishable because the act of aiding and abetting was completed. Carr knowingly permitted others, who possessed precursors with the intent to manufacture meth, to repeatedly use her home as a safe haven and storage facility for that process. Accordingly, we believe substantial evidence exists to support her conviction as an aider and abettor. Consequently, even if Carr could not be convicted as a principal, the motion for judgment of acquittal still would have been denied under the alternative aiding and abetting theory.
B. Carr also asserts counsel should have made a specific motion for judgment of acquittal with respect to the charge of keeping a drug house. She contends the State failed to prove she kept her house for the substantial purpose of using controlled substances because any use of controlled substances was incidental to Carr's use of the home as her residence. Iowa's "crack-house" statute states that is unlawful for any person:
Knowingly to keep or permit the keeping or to maintain any premises, store, shop, warehouse, dwelling, temporary, or permanent building, vehicle, boat, aircraft, or other temporary or permanent structure or place, which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for keeping, possessing or selling them in violation of this chapter.
Iowa Code § 124.402(1)( e). In State v. Westeen, 591 N.W.2d 203 (Iowa 1999), our supreme court interpreted Iowa's crack-house statute. The court adopted the interpretation given to the statute in other jurisdictions, as summarized by the Alaska Court of Appeals in Dawson v. State, 894 P.2d 672 (Alaska Ct.App. 1995).
"The state need not prove that the property was used for the exclusive purpose of keeping or distributing controlled substances, but such use must be a substantial purpose of the users of the property, and the use must be continuous to some degree; incidental use of the property for keeping or distributing drugs or a single, isolated occurrence of drug-related activity will not suffice."
Westeen, 591 N.W.2d at 209 (quoting Dawson, 894 P.2d at 678-79) (emphasis added) (citations omitted). Carr's argument hinges upon the interpretation of the sentence in Westeen that states "`incidental use of the property for keeping or distributing drugs . . . will not suffice.'" Id. She argues that the primary use of the premises was as her shelter, and therefore, any drug use was incidental to her use of the premises as a residence. For reasons discussed below, we disagree with Carr's interpretation of the term "incidental."
"Incidental" can mean "subordinate . . . in position or significance." Webster's Third New Int'l Dictionary 1142 (unabr. ed. 1993). This is the definition Carr relies upon. However, "incidental" can also mean "occurring merely by chance or without intention," and "occurring as a minor concomitant." Id. After a thorough review of Westeen and the case law cited therein, it is clear to us that the word "incidental" as it is used in reference to Iowa's crack-house statute, means "minor," or "occurring merely by chance or without intention." If we adopted Carr's definition, it would undermine and confound Iowa's crack-house statute, as controlled substance use is often subordinate to a legitimate use of the property, such as a dwelling or place of business. Under Dawson and Westeen, the issue is not whether the primary purpose of a building is the storing and keeping of drugs. See Dawson, 894 P.2d at 676 ("[A] dwelling . . . need not be used for the exclusive, or even primary purpose of storing or disturbing drugs; as long as such use is a substantial purpose . . . the prohibition applies."). Rather, the other uses of the premises are irrelevant so long as a substantial use of the property was for the ongoing use of controlled substances. See Westeen, 591 N.W.2d at 210 ("[P]roof that a substantial purpose of the dwelling was for the ongoing storing, possessing or selling of drugs is required."). The evidence produced at trial demonstrated that on myriad occasions, numerous individuals came to Carr's home to manufacture, distribute, store, and use controlled substances. This evidence is more than sufficient to show that a substantial purpose of the users of Carr's property was for drug-related activity. Counsel was not ineffective in failing to raise this meritless issue in a motion for judgment of acquittal. Id. at 207.
"Concomitant" means "something that accompanies or is collaterally connected with another." Webster's Third New Int'l Dictionary 471 (unabr. ed. 1993).
C. Carr next avers counsel was ineffective in failing to object to the marshalling instruction on keeping a drug house. Jury Instruction 30, the marshalling instruction for the offense of keeping a drug house stated as follows:
1. On or about the 28th day of July, 2003, the defendant knowingly kept premises, a dwelling, a building, or other permanent or temporary structure or place.
2. The premises, dwelling, building, or other permanent or temporary structure or place was resorted to by persons using controlled substances for the purpose of using those substances. To "resort to" someplace means persons go to the place often, customarily, or generally. Methamphetamine is a controlled substance.
3. The defendant knew at that time that persons resorted to the premises, dwelling, building, or other permanent or temporary structure or place for that purpose and engaged in the use of controlled substances.
Carr contends this instruction failed to convey that incidental use of the property for drug-related activity was insufficient to support a conviction and that counsel was ineffective for failing to request the uniform instruction.
While we generally prefer the uniform instructions be followed by trial courts, a court may phrase the instructions in its own words as long as the instructions given fully and fairly advise the jury of the issues it is to decide and the law that is applicable. State v. Liggins, 557 N.W.2d 263, 267 (Iowa 1996). We conclude that although Instruction 30 does not mirror the uniform instruction, it adequately advised the jury of the applicable law. Carr's argument, stated another way, is that the jury was never instructed that the State had to prove the use of the property for drug-related activity was continuous to some degree. See Westeen, 591 N.W.2d at 207-08. We disagree. The requirement that the use of the premises for illicit purposes be continuous in nature is fully embodied by the court's use of the phrase "resort to" in paragraph two of the instruction. Pursuant to the court's definition, "resort to" means "persons go to the place often, customarily, or generally." Clearly, this definition reflects the requirement that the use of the premises for drug-related activity be more than a mere isolated occurrence.
Along this same vein, Carr further claims the instruction failed to articulate that she had to know a substantial purpose of keeping the property was for the ongoing use of controlled substances. Based on our foregoing discussion, the instruction adequately conveyed this requirement in paragraph three through the use of the legally accurate phrase "resorted to." We find no error in the court's instructions. Consequently, we conclude counsel was not ineffective in failing to raise this meritless issue. See id. at 207.
D. In her final claim of ineffective assistance of counsel, Carr claims her counsel failed to adequately advise her of the penalty for manufacture of methamphetamine in excess of five grams. Consequently, she contends her decision to proceed to a jury trial was not fully informed. We conclude the record before us is inadequate to resolve this particular claim of ineffective assistance of counsel on direct appeal. Thus, we preserve this claim of ineffective assistance of counsel for possible postconviction proceedings.