Opinion
No. 04-0543.
March 16, 2005.
Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.
Michael Troy McKinney appeals from his conviction for possession of pseudoephedrine with intent to manufacture methamphetamine. REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Andrews, Assistant Attorney General, John P. Sarcone, County Attorney, and Stephen K. Baynes, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
A jury found Michael Troy McKinney guilty of three drug-related charges: possession of pseudoephedrine with intent to manufacture methamphetamine; possession of a controlled substance, methamphetamine; and possession of a controlled substance, marijuana. On appeal, McKinney claims there was insufficient evidence to support his conviction for possession of pseudoephedrine with intent to manufacture methamphetamine. We reverse his conviction for that offense.
I. Background Facts Proceedings
On September 29, 2003, an Altoona Wal-Mart Loss Prevention Officer, David Novencido, observed a nervous looking individual purchase the store limit of three boxes of pseudoephedrine and then leave the store. Approximately ten minutes later, Novencido observed the same individual come back into the store and buy another three boxes of pseudoephedrine. Novencido immediately contacted the Altoona police and provided a description of the individual who purchased the pseudoephedrine and the vehicle he was driving.
Pseudoephedrine is a precursor, or essential building block, used to manufacture methamphetamine.
Altoona Police Officer David Tinker responded to the call. When Officer Tinker arrived at the Wal-Mart parking lot, he saw McKinney enter a pickup truck and drive off at a high rate of speed. Officer Tinker activated his emergency lights and pulled the truck over. After approaching the truck, Officer Tinker learned that the driver was Michael McKinney and a passenger in the front seat was Stacy Wagaman.
Wagaman was slouched down, hiding under a blanket, in the front passenger seat when Officer Tinker approached the truck.
McKinney was unable to produce a driver's license and admitted his license was suspended. He also told Officer Tinker that he might be "wanted." Officer Tinker handcuffed McKinney and put him in the back of his patrol car. After confirming McKinney's driver's license was suspended and that there were two warrants outstanding for his arrest, Officer Tinker searched the truck.
Officer Tinker found four Wal-Mart shopping bags behind the driver's seat where McKinney had been sitting. Each bag contained three boxes of pseudoephedrine. Receipts in the bags showed that some of the twelve boxes had been purchased at the Altoona Wal-Mart and others at the Southeast 14th Wal-Mart in Des Moines. The pseudoephedrine boxes were the only purchases listed on the receipts. Officer Tinker also found a black zippered case in the driver's door molding containing a plastic bag with marijuana, two already rolled marijuana cigarettes, and a small digital scale.
Officer Melodee Tufts searched Wagaman's purse. Her search revealed the following items: (1) a plastic bag containing methamphetamine, (2) a "tooter" made from a hollow Bic pen, a device used to snort methamphetamine or cocaine, which had burn marks on its end and off-white powdery residue inside, and (3) a folded piece of aluminum foil, that could be used for smoking methamphetamine, which had burn marks on it.
After McKinney was read his rights at the police station, he admitted that any drugs that were found in the truck were his. McKinney told police he had put the methamphetamine in Wagaman's purse. He also admitted the digital scale was his and that he had purchased the twelve boxes of pseudoephedrine that day. McKinney told officers he was a user of both methamphetamine and marijuana. He said he smoked and snorted methamphetamine and smoked marijuana. McKinney admitted he was "high" on methamphetamine when he was arrested.
On October 30, 2003, the State charged McKinney with the following offenses: (1) possession of pseudoephedrine/ephedrine with intent to use it to manufacture a controlled substance, in violation of Iowa Code section 124.401(4) (2003) (Count I), (2) possession of methamphetamine, in violation of Iowa Code section 124.401(5) (Count II), and (3) possession of marijuana, in violation of Iowa Code section 124.401(5) (Count III). Following a jury trial, McKinney was found guilty on all three counts. On February 25, 2004, the district court sentenced McKinney to five years in prison on Count I, one year in prison on Count II, and 180 days in prison on Count III, all to run concurrently. McKinney appeals challenging his conviction on Count I only.
II. Scope of Review
We review sufficiency of the evidence claims for correction of errors at law. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). We examine the record in the light most favorable to the State. See State v. Terry, 544 N.W.2d 449, 450 (Iowa 1996). We look for substantial evidence, including any inferences arising from the evidence, to support the jury's verdict. Id. at 451. If the verdict is supported by substantial evidence, it is binding on this court. State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996). Evidence that could convince a trier of fact the defendant is guilty of the crime charged beyond a reasonable doubt is substantial evidence. Id.
III. Discussion
McKinney admits he possessed methamphetamine and marijuana on the date of his arrest, but claims the evidence presented at his jury trial was insufficient to support his conviction for possession of pseudoephedrine with intent to manufacture methamphetamine. As a result, he argues that the district court erred in overruling his motion for judgment of acquittal as to Count I.
At McKinney's jury trial, the State had the burden to prove that: (1) on or about September 29, 2003, McKinney possessed pseudoephedrine, (2) McKinney knew that the substance he possessed was pseudoephedrine, and (3) McKinney possessed the pseudoephedrine with the specific intent to manufacture methamphetamine. McKinney admits he knowingly possessed pseudoephedrine, but contends there was insufficient evidence that he specifically intended to manufacture methamphetamine with the pseudoephedrine that he possessed when he was arrested. In support of this contention, McKinney relies on State v. Truesdell, 679 N.W.2d 611 (Iowa 2004).
At the time McKinney was arrested, Iowa Code section 124.401(4) stated in pertinent part: A person who possesses any product containing any of the following commits a class "D" felony, if the person possesses with the intent to use the product to manufacture any controlled substance: . . . b. Pseudoephedrine, its salts, optical isomers, salts of optical isomers, or analogs of pseudoephedrine. Our legislature recently amended section 124.401(4) to prohibit possession of a product "with the intent that the product be used to manufacture any controlled substance." See 2004 Iowa Acts ch. ___ (S.F. 2101, 80th General Assemb., effective July 1, 2004) (emphasis added).
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 Truesdell left a grocery store with seventy boxes of pseudoephedrine. Id. at 619. Although the court acknowledged that the quantity of the pseudoephedrine possessed by Truesdell could be viewed as circumstantial evidence that "some person" intended to manufacture methamphetamine, the court concluded that without more this evidence was insufficient to establish Truesdell was that person. Id.
Truesdell had not been decided at the time the district court ruled on McKinney's motion for judgment of acquittal.
The quantity of tablets taken by Truesdell was the equivalent of 1500 60-milligram tablets.
We believe Truesdell controls the outcome here. McKinney was found with evidence tying him to possession of 576 pseudoephedrine tablets and he admitted possessing and using both marijuana and methamphetamine. However, officers did not find McKinney in possession of any other precursors, and they did not find any tubing, jars, filters, or other paraphernalia normally used in the process of manufacturing methamphetamine. McKinney denied ever having manufactured methamphetamine, but did admit he would have traded the pills for methamphetamine if someone had offered. In light of Truesdell, we conclude there is insufficient evidence to establish that McKinney intended to manufacture methamphetamine.
Accordingly, we reverse McKinney's conviction for possession of pseudoephedrine with intent to manufacture methamphetamine as charged in Count I and remand for dismissal of that charge.