Opinion
No. 4-775 / 04-0204
Filed December 22, 2004
Appeal from the Iowa District Court for Butler County, Peter B. Newell, District Associate Judge.
Wade Mrzlak appeals his conviction and sentence for possession of precursor to manufacture a controlled substance. REVERSED AND REMANDED.
David Kuehner, of Laird Luhring Law Office, Waverly, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Gregory Lievens, County Attorney, and Marty Petersen, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
A jury found Wade Mrzlak guilty of possession of precursors with intent to manufacture methamphetamine. Iowa Code § 124.401(4)(d) (2003). On appeal, Mrzlak contends there was insufficient evidence to establish he intended to manufacture methamphetamine. In light of recent controlling precedent, we reverse and remand.
Mrzlak was also found guilty of possession, tampering or transporting anhydrous ammonia. Mrzlak does not challenge this conviction on appeal.
I. Background Facts
A farmer contacted law enforcement authorities to report suspicious activity around his anhydrous ammonia tanks. Authorities installed a motion detection system to monitor this activity. One week after the installation, movement was detected around the tanks. An officer arriving at the scene found a gas can with a frost line on it as if anhydrous ammonia had just been placed in it. Another officer found Mrzlak hiding in some trees. Mrzlak had in his pocket a syringe, a gas cap from the gas can found at the scene, and a cap from the anhydrous tank. He was arrested.
II. Sufficiency of the Evidence
Iowa Code section 124.401(4)(d) (2003) stated:
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: . . .
Our legislature recently amended this provision 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 State v. Truesdell, 679 N.W.2d 611 (Iowa 2004), the Iowa Supreme Court construed "intent" within the meaning of the 2003 provision. The court held the statute 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.2dat 618. The court found this type of intent lacking, where the evidence established only that Truesdell left a grocery store with seventy boxes of cold relief medication containing a methamphetamine precursor. Id. at 618-619. The court acknowledged that the quantity of precursor possessed by Truesdell could be viewed as circumstantial evidence that "some person" intended to manufacture methamphetamine. Id. at 619. However, the court concluded that, without more, this evidence was insufficient to establish Truesdell was that person. Id. Truesdell is controlling precedent. Mrzlak was found with evidence tying him to possession of anhydrous ammonia and drug use, but with nothing more. Mrzlak freely admitted using methamphetamine, but did not state why he had siphoned off the anhydrous ammonia. While a deputy sheriff opined that Mrzlak and a companion likely "had everything ready" to manufacture a batch of methamphetamine and "stole the anhydrous to finish the product," no other precursors were found and there was no evidence Mrzlak knew how to manufacture methamphetamine. In light of Truesdell, we conclude there is insufficient evidence to establish that Mrzlak intended to manufacture methamphetamine.
Truesdell testified he did not know how to manufacture methamphetamine and he intended to sell the cold medicine to a friend. Id. at 615.
We reverse Mrzlak's judgment and sentence for possession of a precursor with intent to manufacture and remand for entry of judgment of dismissal.
REVERSED AND REMANDED.
Huitink, P.J., concurs; Zimmer, J., concurs specially.
I specially concur. I agree with the majority's conclusion that our supreme court's decision in State v. Truesdell, 679 N.W. 2d 611 (Iowa 2004) is controlling precedent and requires us to reverse this case. I write specially to respectfully suggest that the factual scenario presented by the case before us, and the facts of State v. Heuser, 661 N.W.2d 157 (Iowa 2003) (holding that intent to manufacture could be inferred from the possession of an unusually large amount of pseudoephedrine by one who also possessed lithium batteries, particularly where these substances were surreptitiously acquired) should result in the same outcome on appeal on the question of sufficiency of the evidence. Nevertheless, I agree with the majority opinion's conclusion that, in light of Truesdell, the evidence here is insufficient to establish that Mrzlak intended to manufacture methamphetamine.