Opinion
No. 1-327 / 00-0045
Filed October 12, 2001
Appeal from the Iowa District Court for Audubon County, James M. Richardson, Judge.
Defendant appeals from the judgments and sentences entered upon his guilty pleas to seven separate charges and his conviction on three others following a jury trial.
AFFIRMED IN PART; VACATED IN PART; AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Dennis D. Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Bridget A. Chambers, County Attorney, and Francine O'Brien Anderson, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Mahan and Zimmer, JJ.
On appeal, John Christopher Gaines contends insufficient evidence existed to convict him of manufacturing more than five grams of methamphetamine, possession of precursors, and child endangerment. Gaines argues his wife, Jill Gaines, Jenny Rutledge, and Joel Larson were his accomplices and the State failed to offer evidence corroborating their testimony. Alternatively, he asserts his trial counsel was ineffective in failing to preserve error on this issue. Gaines also argues his trial counsel was ineffective in (1) failing to object to a jury instruction regarding his alleged accomplices, (2) failing to challenge the factual basis on his guilty pleas to seven charges, and (3) other respects which do not appear in the record on appeal. Finally, Gaines contends the court erred in failing to adequately state reasons for consecutive sentencing on the charge of child endangerment. We affirm the three convictions following the jury trial in case number FECR046778, we vacate the judgment and sentence on the charge of indecent contact with a child in case number AGCR046813, we vacate the remaining six sentences entered in case numbers FECR046835 and AGCR046813, we vacate the sentence for child endangerment in case number FECR046778, and remand to the district court for proceedings consistent with this opinion.
I. Background Facts and Proceedings. This matter is a consolidated appeal by Gaines from three judgments in Audubon County.
A. Case Number FECR046778.
In case number FECR046778, the State filed a trial information charging Gaines with manufacturing more than five grams of methamphetamine, a class B felony, in violation of Iowa Code sections 124.401(1b)(7) and 124.401C (1999); possession of products containing ephedrine and/or pseudoephedrine, with the intent to use the product as a precursor to any controlled substance, a class D felony, in violation of Iowa Code section 124.401(4); and child endangerment, an aggravated misdemeanor, in violation of Iowa Code section 726.6(3). Case number FECR046778 proceeded to trial.
At trial, the Stated presented evidence Gaines, his wife, Jill, Jenny Rutledge, and Joel Larson produced methamphetamine at Rutledge's home in Audubon while several of their children were present. Gaines and his family had been staying in the home at the time in question. During a search of the home, police officers discovered significant amounts of evidence that methamphetamine was being manufactured in the basement. A jury found Gaines guilty of manufacturing more than five grams of methamphetamine, possession of precursors, and child endangerment.
B . Case Numbers FECR046835 and AGCR046813.
In case number FECR046835, the State charged Gaines with assault on a peace officer, an aggravated misdemeanor, in violation of Iowa Code section 708.3A(3); escape of a convicted felon, a class D felony, in violation of Iowa Code section 719.4(1); kidnapping in the third degree, a class C felony, in violation of Iowa Code sections 710.1(4)-(5) and 710.4; theft in the first degree, a class C felony, in violation of Iowa Code sections 714.1(1) and 714.2(1); and possession of a firearm by a felon, a class D felony, in violation of Iowa Code section 724.26. The State alleged on December 26, 1999, while Deputy Samuel Hansen was cleaning the defendant's cell at the Audubon County jail, Gaines slipped through the open door and locked Deputy Hansen in the cell after a struggle between the two men. Gaines then forced and locked dispatcher Tauna Bohlman into an isolation cell and escaped in a patrol car, which was later wrecked by Gaines during his escape.
In case number AGCR046813, Gaines was charged with indecent contact with a child, an aggravated misdemeanor, in violation of Iowa Code section 709.12(2) and criminal mischief in the third degree, an aggravated misdemeanor, in violation of Iowa Code sections 716.1 and 716.5. The State alleged on April 18, 1999, while staying at Rutledge's residence, Gaines committed indecent contact with a house guest. The State further alleged while in the Audubon County jail on the charge, Gaines broke a porcelain sink in his cell.
The State and Gaines entered into a plea agreement whereby Gaines would plead guilty to the seven counts in criminal case numbers FECR046835 and AGCR046813 in exchange for a specific sentencing recommendation by the State. No plea agreement existed covering the sentences to be imposed in case number FECR046778.
We do not set forth the specific plea agreement in these two cases since Gaines stipulates the plea agreement was carried out and he received the intended sentences on these seven charges.
C. Sentencing.
For purpose of sentencing, the district court consolidated case numbers FECR046835, AGCR046813, and FECR046778. On January 3, 2000, the district court entered final judgment in these three cases sentencing Gaines to a total of fifty-four years of incarceration. The district court fully implemented the plea agreement reached in case numbers FECR046835 and AGCR046813. However, the district court without explanation ordered the charge of child endangerment to run consecutive to the two other counts in case number FECR046778.
II. Sufficiency of the Evidence in FECR046778. Gaines contends insufficient evidence existed to convict him of manufacturing more than five grams of methamphetamine, possession of precursors, and child endangerment. Specifically, Gaines argues his wife, Jill Gaines, Jenny Rutledge, and Joel Larson were his accomplices as a matter of law and the State failed to offer evidence corroborating their testimony. While we agree the individuals were accomplices as a matter of law, we disagree the State failed to corroborate their testimony.
For purposes of this analysis into the sufficiency of the evidence, we conclude Joel Larson, Jenny Rutledge, and Jill Gaines were accomplices as a matter of law. That issue will be more fully developed in Division III.
We review challenges to the sufficiency of evidence for errors at law. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). The existence of corroborating evidence is a legal question for the court to resolve. State v. Bugely, 562 N.W.2d 173, 176 (Iowa 1997). A verdict of guilty is binding on appeal unless no substantial evidence exists to support it, or it is clearly against the weight of the evidence. State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct.App. 1998). Substantial evidence means evidence that could convince a rational trier of fact the defendant is guilty beyond a reasonable doubt. Id.
In deciding whether there is substantial evidence, we view the record in a light most favorable to the State. Id. All evidence is considered, not merely the evidence supporting the verdict. State v. Jacobs, 607 N.W.2d 679, 682 (Iowa 2000). Direct and circumstantial evidence is equally probative. Shortridge, 589 N.W.2d at 80. A verdict can rest on circumstantial evidence alone. Id. However, "[t]he evidence must at least raise a fair inference of guilt as to each essential element of the crime. Evidence which merely raises suspicion, speculation, or conjecture is insufficient." State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992) (citations omitted).
The jury is free to believe or disbelieve any testimony it chooses and to give weight to the evidence as in its judgment such evidence should receive. State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993). The very function of the jury is to sort out the evidence and "place credibility where it belongs." Id." Additionally, discrepancies in testimony do not, in and of themselves, preclude proof beyond a reasonable doubt." Shortridge, 589 N.W.2d at 80.
Iowa Rule of Criminal Procedure 20(3) provides:
A conviction cannot be had upon the testimony of an accomplice or a solicited person, unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
Iowa R. Crim. P. 20(3).
The only requirement for corroborating testimony is it must support some material part of the accomplice's testimony, thereby tending to connect the defendant to the commission of the crime and to support the credibility of the accomplice. State v. Astello, 602 N.W.2d 190, 198 (Iowa Ct.App. 1999). A small amount of evidence is all that is required. Shortridge, 589 N.W.2d at 80. "Corroborative evidence need not be strong and need not be entirely inconsistent with innocence." Astello, 602 N.W.2d at 198. Even if each piece of evidence is not alone sufficient to corroborate the accomplice, the evidence as a whole may be sufficient corroboration. State v. Willman, 244 N.W.2d 314, 315 (Iowa 1976). The State need not establish corroborative evidence beyond a reasonable doubt. State v. Hoeck, 547 N.W.2d 852, 859 (Iowa Ct.App. 1996).
Reviewing the record in the light most favorable to the State, we find there is sufficient evidence to corroborate the testimony of Larson and Rutledge, and to support the jury's verdict. During a search of Rutledge's residence in April 1999, the police officers found significant amounts of evidence that methamphetamine had been manufactured at the home as well as additional chemical precursors of methamphetamine. In a duffel bag retrieved from a closet in one of the bedrooms, the police officers found three full cans of starter fluid and two bottles of pseudoephedrine pills, both of which are used in making methamphetamine.
Jill Gaines did not supply any significant evidence against the defendant.
The police officers also found evidence of methamphetamine manufacture and use in the basement of Rutledge's home. Rutledge testified Gaines and his wife often stayed overnight in the backroom of the basement when they stayed with Rutledge. In the backroom of the basement, the police officers found lithium batteries that had been opened and the lithium removed, numerous cans of starter fluid, a lid with a hose coming out of it, razor blades, tubing, duct tape, aluminum foil and plastic sandwich bags. The police officers also found items that could be used to consume methamphetamine such as starter fluid cans that were punctured on the bottom where the ether was drained, common in the methamphetamine making process.
Even more evidence of methamphetamine manufacture was found in the garage of Rutledge's residence. The police officers retrieved several different brands of starter fluid, kerosene, paint thinner, a funnel, plastic tubing, a package of batteries, empty plastic pseudoephedrine boxes, a white jug which contained a caustic fluid, and a Mountain Dew bottle with a hose connected to it. All of these items are used in the manufacture of methamphetamine.
On July 2, 1999, Audubon Chief of Police Arnie Krauel learned of a previously undiscovered window, which led from the basement at Rutledge's residence into a crawl space underneath the porch. More evidence of methamphetamine manufacture was found in garbage bags that were retrieved from this crawl space. The police officers discovered numerous Sudafed containers, empty antifreeze bottles, pop bottles with rubber hoses taped to the tops, a coffee filter soiled with a brownish substance and a coffee filter box. Rutledge testified the crawl space was off the backroom of the basement, which Gaines and his wife used when they stayed at her home. All of the physical evidence seized in April and July 1999 was consistent with the manufacture of methamphetamine.
Moreover, the physical evidence seized from Rutledge's residence is consistent with both Rutledge's and Larson's testimony that Gaines manufactured methamphetamine in Rutledge's home on April 24 and April 27. On April 24, Rutledge testified when she returned home after a trip to Atlantic she found her house full of yellow smoke, which smelled very strongly of methamphetamine. Rutledge noted only Gaines, his wife, and Joe Lumley were in the house at this time. The following day, April 25, Rutledge noticed red burns on Gaines's neck that Gaines told her was caused by anhydrous ammonia, which he had splashed on himself and spilled on his legs. Rutledge also noticed Gaines did not walk normally that day. Just a few days later, on April 27, when Rutledge returned home from work, she again smelled a very strong odor of methamphetamine in her home. She noticed Gaines was in the basement of her home with Lumley. Several children were also in the home during the manufacturing process, which took place on the later date, April 27. Although Rutledge did not see the actual manufacture of methamphetamine by Gaines, the details of her observations were consistent with all the physical evidence seized, which indicated methamphetamine manufacturing.
Larson's testimony was very similar to that of Rutledge. At the time the search warrant was executed, Larson admitted to Audubon County Deputy Sheriff Todd Johnson it was Gaines who was manufacturing methamphetamine at Rutledge's residence. Larson also admitted to Johnson it was also Gaines that left the items in the basement. He also admitted at trial Gaines manufactured methamphetamine at Rutledge's residence on April 24 and April 27.
We may consider as corroborating evidence the fact Gaines and his wife used Rutledge's residence as their residence from January to April 1999. Independent evidence established beginning in December 1998, two of Gaines's children stayed with Rutledge on a full-time basis and she enrolled them in Audubon schools. When the search warrant was executed, court documents belonging to Gaines were found on the dining room table. Officers found other indicia of Gaines's joint possession of the premises. On top of the duffel bag, license plates belonging to Jill Gaines were found along with clothes belonging to her and the defendant. A van registered to Gaines and his wife was also found in the garage. In addition, independent evidence established Gaines used Rutledge's residence as a mailing address. Gaines himself gave the Adair County Sheriff's Department Rutledge's address as his own address on two separate occasions, April 7 and April 12, 1999. The record also established Gaines called this residence during his one telephone call following his arrest by the sheriff's department. Furthermore, a neighbor who lived across the street from Rutledge's residence stated Gaines, his wife, Rutledge, and Larson were living at the residence. The neighbor also testified she saw Jill Gaines at Rutledge's residence on a daily basis during the months of January to April 1999 as well as observing Gaines at Rutledge's residence on April 24 and April 27. The record established it was Gaines himself who put the lock on the door to the backroom of the basement. The record further corroborates Gaines and his wife had previously used the crawl space to hide in February of 1999 when police stopped Rutledge outside of her home seeking information as to whether Gaines was at her home. In addition, Joel Larson is Jill Gaines's brother and the boyfriend of Jenny Rutledge, thus showing the close ties between the parties. This evidence is sufficient to corroborate material facts of Rutledge's and Larson's testimony as well to establish Gaines and his wife were in joint possession of Rutledge's residence with Rutledge and Larson during the time methamphetamine was being manufactured.
Expert testimony also corroborated Rutledge's and Larson's testimony Gaines used the chemicals and equipment found in the home to manufacture methamphetamine. A narcotics agent testified the items seized from Rutledge's home were indicative of a "Nazi method" of making methamphetamine, which typically uses pseudoephedrine, coffee filters, lithium batteries, a can or milk jug, anhydrous ammonia, and a solvent such as starter fluid. A criminologist testified based on the evidence seized from Rutledge's residence, sixty-eight to eighty-seven grams of methamphetamine could have been made at the scene. In addition, chemical testing of some sludge found at the scene showed it contained pseudoephedrine, a small amount of methamphetamine, and lithium salt.
When the evidence is viewed in the light most favorable to the State, we are satisfied the cumulative effect of this evidence is sufficient to satisfy the corroboration requirements. We therefore find substantial evidence exists in the record to support Gaines's convictions on all three charges, and we affirm the district court on this issue.
III. Ineffective Assistance of Counsel. Gaines also claims he was denied effective assistance of counsel. We review such claims de novo. State v. Ledezma, 626 N.W.2d 134, 141 (Iowa 2001).
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). 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).
The defendant bears the burden of demonstrating ineffective assistance of counsel. Ledezma, 626 N.W.2d at 142. A defendant receives ineffective assistance of counsel when (1) the defense attorney fails in an essential duty and (2) prejudice results. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997).
Gaines claims he received ineffective assistance of counsel due to counsel's (1) failing to preserve error on his claim his convictions in FECR046788 were not supported by sufficient evidence; (2) failing to object to jury instruction number 17 as it related to corroboration of accomplice testimony; (3) failing to challenge the factual basis for those crimes to which Gaines entered pleas of guilty; (4) in failing to raise a claim of jury impropriety; (5) in failing to raise an alibi defense to his charges; and (6) in failing to impeach State's witnesses with alleged material inconsistencies in pretrial depositions.
We conclude the record in this case is insufficient for us to address Gaines's claims his trial counsel failed to raise jury impropriety, alibi defense, and impeachment of certain State's witnesses in this direct appeal. Therefore, we preserve these three ineffective assistance of counsel claims for postconviction relief proceedings. However, we do find the record adequate to decide the remaining three claims in this direct appeal.
A. Failure to Preserve Error on Insufficiency of the Evidence Argument.
We concluded in Division II substantial evidence exists in the record to support Gaines's convictions. Therefore, this claim of ineffective assistance of counsel must fail.
B. Failure to Object to Jury Instruction 17.
Gaines contends his trial counsel was ineffective for failing to object to jury instruction number 17 as it related to corroboration of accomplice testimony. Specifically, Gaines claims the instruction should have required the jury find corroboration because, in his belief, the three witnesses involved were accomplices as a matter of law.
Instruction Number 17 states:
An "accomplice" is a person who knowingly and voluntarily cooperates or aids in the commission of a crime.
A person cannot be convicted only by the testimony of an accomplice. The testimony of an accomplice must be corroborated by other evidence tending to connect the defendant with the crime.
If you find Joel Larsen or Jill Gaines or Jenny Rutledge is an accomplice, the defendant cannot be convicted only by that testimony. There must be other evidence tending to connect the defendant with the commission of the crime. Such other evidence, if any, is not enough if it just shows a crime was committed. It must be evidence tending to single out the defendant as one of the persons who committed it. (Emphasis added).
We agree the three witnesses were accomplices as a matter of law. The district court should have instructed accordingly. However, in light of the evidence summarized in Division II, the record clearly establishes Gaines has failed to prove he was prejudiced by counsel's actions. Accordingly, we reject this claim of ineffective assistance of counsel.
C. Failure to Challenge the Factual Basis of the Guilty Pleas.
Gaines also claims his trial counsel was ineffective because he did not challenge the factual basis for seven crimes to which he pled guilty. In case number FECR046835, Gaines entered guilty pleas to (1) theft in the first degree; (2) kidnapping in the third degree; (3) escape of a convicted felon; (4) assault on the police office; and (5) possession of a firearm by a felon. In case number AGCR046813, Gaines entered guilty pleas to two additional charges of (1) indecent contact with a child and (2) criminal mischief in the third degree.
Our first and only inquiry is whether the record shows a factual basis for Gaines's pleas entered in FECR046835 and AGCR046813. Before accepting a guilty plea, the district court must establish on the record a factual basis for the plea. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). In deciding whether a factual basis exists, the court may consider the entire record, including any of the defendant's statements, facts related by the prosecutor, the presentence report, and the minutes of testimony. Id. Trial counsel fails to perform an essential duty when he permits a defendant to plead guilty to an offense lacking a factual basis in the record. Id. In addition, the defendant is inherently prejudiced under such circumstances. Id.
The State concedes, and we agree, there is no factual basis to support Gaines's plea to indecent contact with a child. This charge must be vacated and dismissed. Therefore, we focus on the other six pleas in these two cases.
We conclude Gaines's pleas entered in FECR046835 and AGCR046813 must be set aside and vacated for lack of a factual basis. The record upon which the district court could determine whether a factual basis existed for the guilty pleas was minimal. The prosecutor made no factual statements. The presentence report had not been completed. The court merely had before it the minutes of testimony. During the plea colloquy, Gaines did admit his commission of the crimes. However, we find the record devoid of any attempt by the district court to determine whether Gaines possessed the requisite intent or knowledge for the offenses charged in FECR046835 and AGCR046813. See id. at 790; State v. Galbreath, 525 N.W.2d 424, 427 (Iowa 1994). In the plea colloquy, the district court called upon Gaines to determine whether "the trial information and the minutes of testimony attached to it truthfully and accurately state what happened." We conclude this is inconsistent with Iowa Rule of Criminal Procedure 8(2)(b). Schminkey, 597 N.W.2d at 790; Galbreath, 525 N.W.2d at 427.
The State concedes the guilty pleas were not "perfect pleas" and this court would have to strain to find a factual basis. However, the State argues a factual basis can be found.
We conclude under Iowa Rule of Criminal Procedure 8(2)(b), the district court "did not advise defendant as to the specific intent requirement for the crime[s] charge[d], nor did trial court determine that defendant understood [these] elements." State v. Henning, 299 N.W.2d 909, 911 (Iowa Ct.App. 1980). Therefore, the record fails to show a factual basis for the pleas entered. We vacate the judgment and sentence on the charge of indecent contact with a child and remand to the district court for an order of dismissal. Schminkey, 597 N.W.2d at 792. We vacate the sentences on the remaining six charges and remand to the district court for further proceedings to allow the State an opportunity to establish a factual basis. Id.
IV. Sentencing. Gaines asserts the district court did not give sufficient reasons on the record for ordering a consecutive sentence to the child endangerment charge in case number FECR046778. He notes the district court ordered the charge of manufacturing methamphetamine and possession of precursors to run concurrent with one another and made the child endangerment consecutive, but did not give any reasons for imposing the consecutive sentence.
Our review of sentencing procedures is for an abuse of discretion. State v. Duckworth, 597 N.W.2d 799, 800 (Iowa 1999). Such abuse will only be found if the district court's discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable. Id.
Iowa Rule of Criminal Procedure 22(3)(d) requires a district court to "state on the record its reasons for selecting a particular sentence." A court must also give reasons for its decision to impose consecutive sentences. State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000). "A statement may be sufficient, even if terse and succinct, so long as the brevity of the court's statement does not prevent review of the exercise of the trial court's sentencing discretion." State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989). "The reasons, however, are not required to be specifically tied to the imposition of consecutive sentences, but may be found from the particular reasons expressed for the overall sentencing plan." State v. Delaney, 526 N.W.2d 170, 178 (Iowa Ct.App. 1994). Thus, we may look to all parts of the record for the supporting reasons. Id.
With regards to the sentencing imposed in case number FECR046778, the district court stated:
Case No. FECR046778, on the charge of manufacturing methamphetamine, more than five grams, in violation of 124.401(1b)(7) and 124.401(c) of the Code of Iowa, as being enhanced by being in the presence of a minor in violation of 124.401C of the Code of Iowa, the defendant is hereby sentenced and committed to the custody of the Director, Iowa Department of Corrections, State of Iowa, for a term of not more than 30 years. On the charge of possession of precursors in violation of Section 124.401(4) of the Code of Iowa, that defendant is likewise committed to the custody of the Director, Iowa Department of Corrections, State of Iowa, for a term not to exceed five years. Said sentence to run concurrent with the previously imposed sentence of manufacturing methamphetamine. That on the charge of child endangerment in violation of 726.6(3) of the Code of Iowa, the defendant is likewise committed to the custody of Director, Division of Adult Corrections, State of Iowa, for a term not to exceed two years. Same to run consecutively to the previously imposed sentence.
The record contains nothing further as to the court's reasons for imposing the consecutive sentence for the child endangerment charge. We conclude, and the State concedes, the district court did not give sufficient reasons for imposing this consecutive sentence as required by Iowa Rule of Criminal Procedure 22(3)(d). Therefore, we find the consecutive sentence for the child endangerment constitutes an abuse of discretion.
Where an improper sentence is severable this court may strike invalid portions of the sentence without disturbing the remainder and remand for appropriate action in the district court. State v. Mai, 572 N.W.2d 168, 170 (Iowa Ct.App. 1997). We determine it is possible to sever the valid portion from the invalid portion. We therefore remand only that part of the sentence that relates to the consecutive sentence imposed for the conviction for child endangerment. We affirm the remaining portion of Gaines's sentence in case number FECR046778.
V. Summary. We affirm the three convictions in case number FECR046778. We vacate the judgment and sentence on the charge of indecent contact with a child in case number AGCR046813 and remand to the district court for the entry of an order of dismissal. We vacate the remaining six sentences in FECR046835 and AGCR046813 and remand to the district court for further proceedings to allow the State an opportunity to establish a factual basis. We vacate the sentence for child endangerment in FECR046778 and remand to the district court for resentencing. Finally, we preserve three of the defendant's claims of ineffective assistance of counsel for postconviction relief proceedings.
AFFIRMED IN PART; VACATED IN PART; AND REMANDED.