Opinion
No. 5-834 / 04-1478
Filed December 21, 2005
Appeal from the Iowa District Court for Emmet County, John P. Duffy, Judge.
Defendant appeals her conviction for possession of pseudoephedrine with intent to manufacture. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, and Douglas Hansen, County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Miller, JJ.
Jessica Peters appeals her conviction for possession of a precursor with intent to manufacture, in violation of Iowa Code section 124.401(4) (2001). She claims (1) the district court erred in overruling her motion for judgment of acquittal and (2) she received ineffective assistance of counsel.
I. Background Facts Proceedings
On November 13, 2002, Jessica Peters accompanied Robert Williams to the Dollar General Store in Estherville, Iowa. Williams attempted to purchase three boxes of pseudoephedrine, but the cashier would only sell him two boxes. After Peters and Williams left, the cashier notified the police that there had been a suspicious purchase of pseudoephedrine.
Shortly thereafter, an employee of Alco saw Peters holding her purse open while Williams put boxes of pseudoephedrine into the purse. Peters and Williams left without paying, and before employees could confront them. The employees got a license plate number and a description of the car used by Peters and Williams. Employees of Alco notified the police of the theft of pseudoephedrine.
A car with matching license plates was found by law enforcement officials in the parking lot of a local Hy-Vee grocery store. Peters and Williams were seen in the cold remedy aisle of the store. When they returned to their car, they were detained by officers. After obtaining a search warrant, officers found more than thirty boxes of pseudoephedrine, drain cleaner, matches, a camp stove, and a cooking utensil in the car. All of these items can be used in the manufacture of methamphetamine. Also, a small quantity of marijuana and methamphetamine were found in the car.
The phosphorus in the match heads is an ingredient in one method of manufacturing methamphetamine.
Peters was charged with possession of marijuana, in violation of Iowa Code section 124.401(5) (2001), and possession of a precursor (pseudoephedrine) with intent to manufacture, in violation of section 124.401(4). A jury found Peters guilty on the precursor charge, but acquitted her on the marijuana charge. The district court denied Peters's motion for a new trial. Peters was given a suspended sentence and placed on probation for two years. She appeals.
II. Sufficiency of the Evidence
A. Section 124.401(4) makes it a crime to possess certain precursors "with the intent to use the product to manufacture any controlled substance." One of these precursors is pseudoephedrine. Iowa Code § 124.401(4)(b). Peters contends the State did not present sufficient evidence to show that she possessed pseudoephedrine with the intent to manufacture a controlled substance, and that the court should have granted her motion for judgment of acquittal. She asserts that there was no evidence that she knew how to manufacture methamphetamine.
Section 124.401(4) was amended effective July 1, 2004, to provide that it is a crime to possess a precursor "with the intent that the product be used to manufacture any controlled substance." Iowa Code § 124.401(4) (2005). This amendment does not apply to the facts in question here, which occurred in 2002. See State v. Truesdell, 679 N.W.2d 611, 618 (Iowa 2004) ("[A] case must be judged under the statute that existed at the time of the offense.").
We review issues regarding the sufficiency of the evidence for the correction of errors at law. State v. Corsi, 686 N.W.2d 215, 218 (Iowa 2004). Evidence is substantial if it could convince a rational jury of the defendant's guilt beyond a reasonable doubt. Id. "In assessing the sufficiency of the evidence, we consider all of the evidence in the record, but we view the evidence in the light most favorable to the State." Id.
A defendant's intent may be shown through circumstantial evidence and inferences drawn from the evidence. State v. Heuser, 661 N.W.2d 157, 166 (Iowa 2003). Section 124.401(4) requires evidence that the defendant intended to use the precursor to manufacture a controlled substance, not merely evidence that the defendant has knowledge that the precursor will be used to manufacture a controlled substance. State v. Truesdell, 679 N.W.2d 611, 618 (Iowa 2004). Evidence of possession of a precursor, without more, is insufficient to show an intent to manufacture a controlled substance. Id. at 619.
In the present case, the record shows much more than the possession of a large quantity of pseudoephedrine. In addition to pseudoephedrine, Peters had drain cleaner, matches, a camp stove, and a cooking utensil, which are all items used for one method of manufacturing methamphetamine. The possession of all of the items together was sufficient evidence to allow the jury to find that Peters had the intent to manufacture a controlled substance. See Heuser, 661 N.W.2d at 166 (noting that possession of pseudoephedrine and lithium batteries was sufficient to show intent to manufacture); State v. Adney, 639 N.W.2d 246, 251-52 (Iowa Ct.App. 2001) (noting that the possession of several items, including pseudoephedrine, was sufficient to show an intent to manufacture).
B. Peters claims the State failed to show that she possessed the pseudoephedrine. Judy Adams, an employee of Alco, testified Peters was holding her purse open, and Williams was putting boxes of cold medication in the purse. Peters and Williams then left the store without paying for the items. Adams identified several boxes of pseudoephedrine which had Alco stickers on them and were found in the parties' car. We determine that because the record shows Peters had the pseudoephedrine in her purse, there is sufficient evidence she was in possession of pseudoephedrine.
We conclude there is sufficient evidence in the record to support Peters's conviction and the district court correctly denied her motion for judgment of acquittal.
III. Ineffective Assistance
A. Peters asserts that she received ineffective assistance because her trial counsel did not object to evidence that she stole several boxes of cold medication. She argues that this evidence was not admissible under Iowa Rule of Evidence 5.404( b) as prior bad acts evidence. Peters claims the evidence was more prejudicial than probative.
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 defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
The evidence of theft in this case does not constitute a prior bad act because it is evidence concerning the crime under consideration. Peters came to possess the pseudoephedrine through theft. The evidence of theft was integral to the context of the crime charged. See United States v. LeCompte, 108 F.3d 948, 952 (8th Cir. 1997) (finding evidence is admissible if it "relates to an integral part of the immediate context of the crime charged"). A defendant cannot complain he or she is prejudiced because evidence of a crime is admitted at a trial relating to that crime. See State v. Veal, 564 N.W.2d 797, 812 (Iowa 1997) (noting evidence immediately surrounding an offense is admissible to show the complete story of the crime). Because the evidence was properly admitted, defense counsel was not ineffective for failing to object. See State v. Bowers, 656 N.W.2d 349, 354 (Iowa 2002).
B. Peters asserts that except for the testimony of Adams, the allegations of theft by all other witnesses should have been excluded as hearsay. She claims she received ineffective assistance because her trial counsel failed to object to statements regarding theft by the sheriff, Larry Lamack, and Estherville police officers Sonja Fagre and Cory Danner.
We conclude Peters was not prejudiced by the references to theft by other witnesses, because as she admits, the evidence was already in the record through the testimony of Adams. See State v. Whitfield, 315 N.W.2d 753, 755 (Iowa 1982) (noting that when the same evidence is already in the record, hearsay statements are not prejudicial); State v. Augustine, 458 N.W.2d 859, 861 (Iowa Ct.App. 1990) (same). Furthermore, the evidence was not admitted to show that theft had occurred, but to show the course of the officers' investigation. See Iowa R. Evid. 5.801( c) ("`Hearsay' is a statement . . . offered in evidence to prove the truth of the matter asserted."). We find Peters's trial counsel was not ineffective for failing to object to the statements in question.
C. During the trial, officer Danner testified as follows:
Q. After the search of the vehicle and the seizure of these items, did you do anything further in this investigation? A. I did attempt to talk with both of the individuals to see if they would speak with me about the items that were found. They both declined to speak about the situation.
Peters asserts that officer Danner's statement was an improper comment that she had exercised her right to remain silent under the Fifth Amendment to the United States Constitution.
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 record is not adequate to address this issue on direct appeal, and it should be preserved for possible postconviction proceedings.
We affirm Peters's conviction for possession of a precursor with intent to manufacture a controlled substance.