Opinion
No. 5-861 / 05-0094
Filed January 19, 2006
Appeal from the Iowa District Court for Black Hawk County, James D. Coil, District Associate Judge.
Defendant appeals from her conviction for possession of marijuana. REVERSED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Jill Dashner, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Casssie Marie Pfeifer appeals from her conviction for possession of marijuana, in violation of Iowa Code section 124.401(5) (2003). Pfeifer challenges the sufficiency of the evidence to sustain her conviction.
I. Background Facts and Proceedings
In the early morning hours of March 13, 2004, Cedar Falls police officer Josh Atteberry stopped a vehicle with one of its headlights out. Adam Fisher was driving the vehicle; Pfeifer was the sole passenger. As the officer approached the vehicle on the driver's side, he smelled a "very strong odor" of burnt marijuana coming from inside the vehicle. The officer asked Fisher to step out and to the rear of the vehicle and told Fisher he could smell marijuana inside the vehicle. Fisher acted "shocked and surprised" and told the officer he did not know what the officer was talking about. Fisher told the officer there was no marijuana in the vehicle.
After turning Fisher over to a reserve officer, Officer Atteberry returned to the vehicle to speak with Pfeifer. He told her he could smell marijuana coming from inside the vehicle and asked Pfeifer if she had any marijuana on her. Pfeifer replied she did not and agreed to a search of her person. Officer Atteberry did not find anything when he searched Pfeifer. The officer had Pfeifer step to the rear of the vehicle with Fisher and the reserve officer.
Officer Atteberry searched the vehicle. He noted the "overwhelming" smell of burnt marijuana inside the passenger compartment. He recovered a burnt marijuana roach in the ashtray, which was located in the center console of the dashboard, between the passenger and driver seats. The officer opined the roach had been smoked recently. He noticed marijuana seeds and stems "strewn about all throughout the car" on the driver and passenger seats and the driver and passenger floorboard. On the driver's side inside the door compartment, the officer found a case containing a large plastic bag of marijuana. During a further search of the vehicle, Officer Atteberry found a drawstring bag on the driver's side that contained rolling papers, a pocket knife with white powder residue on it and a very small piece of marijuana wrapped in a piece of tinfoil.
A laboratory report admitted into evidence identified the material as marijuana.
The seeds and stems were not collected as evidence and were not tested for marijuana. Officer Atteberry testified the seeds and stems were "in plain view" but that because it was dark at the time, one would "have to get down to see them."
Officer Atteberry placed Fisher and Pfeifer in handcuffs and advised them of their rights. Fisher refused to speak to Officer Atteberry. Pfeifer waived her Miranda rights and agreed to speak with the officer. Pfeifer denied knowing about the marijuana in the vehicle and claimed if there was any, it did not belong to her. The officer noticed a strong odor of marijuana emanating from Pfeifer as she sat alone in the back of his car.
At the police department, officers took $713 in cash from Fisher, made up of $20 bills, $10 bills, one $5 bill and some $1 bills. Fisher claimed he had just received a loan payment from college. Officer Atteberry opined the money was from the sale of marijuana.
The State charged Pfeifer with possession of marijuana. She waived her right to a trial by jury. At the bench trial, Pfeifer testified that she had known Fisher for a couple of months and asked him for a ride home from a local bar on the night in question. Fisher went out to the car with some friends and returned to see if Pfeifer was ready to leave. Pfeifer testified she had been in the vehicle about five minutes when Fisher was pulled over. Pfeifer denied knowing there was marijuana in Fisher's vehicle and denied ever smoking marijuana. She testified an officer searched her purse and found nothing. Pfeifer also testified that she asked for a urine test after she learned she was going to be charged with possession of marijuana.
In its findings of facts, conclusions of law, decision and order, the district court concluded the strong odor of burnt marijuana coming from the vehicle and from Pfeifer "gave rise to a fair inference that marijuana was being smoked in the vehicle and also that the defendant was smoking marijuana." The court further concluded the facts established Pfeifer exercised dominion and control over the marijuana found in the ashtray of the vehicle. Pfeifer was convicted and sentenced to sixty days in the county jail. The jail term was suspended, and Pfeifer was placed on probation. The court ordered Pfeifer to pay a $250 fine. Pfeifer appeals, arguing that sufficient evidence did not exist to convict her of possession of marijuana.
II. Sufficiency of the Evidence
We review sufficiency-of-the-evidence claims for errors at law. Iowa R. App. P. 6.4. We review the trial court's findings in a jury-waived case as we would a jury verdict: we uphold a verdict if substantial evidence supports it. State v. Weaver, 608 N.W.2d 797, 803 (Iowa 2000). "Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt." State v. Biddle, 652 N.W.2d 191, 197 (Iowa 2002). We consider all record evidence, not just the evidence supporting guilt, when making sufficiency-of-the-evidence determinations. State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). Direct and circumstantial evidence are equally probative. Iowa R. App. P. 6.14(6)( p). We view the evidence in the light most favorable to the State, "including legitimate inferences and presumptions that may fairly and reasonably be deduced from the record evidence." Biddle, 652 N.W.2d at 197.
To prove possession the State must establish by proof: (1) the accused exercised dominion and control over the contraband, (2) the accused had knowledge of its presence, and (3) the accused had knowledge the material was a controlled substance. State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002). Possession can be either actual or constructive. Id. at 76-77. Because the marijuana was not found on Pfeifer's person, the State was required to prove constructive possession. State v. Henderson, 696 N.W.2d 5, 8 (Iowa 2005). Constructive possession occurs "`when the defendant has knowledge of the presence of the controlled substance and has the authority or right to maintain control of it.'" Id. at 9 (quoting State v. Bash, 670 N.W.2d 135, 138 (Iowa 2003)). "The existence of constructive possession turns on the particular facts of each case." Webb, 648 N.W.2d at 79.
Inferences are often used to prove constructive possession. Henderson, 696 N.W.2d at 9. An inference of dominion and control arises when the premises on which the illegal substances are found are in the exclusive possession of the accused. Henderson, 696 N.W.2d at 9. However,
where the accused has not been in exclusive possession of the premises but only in joint possession, knowledge of the presence of the substances on the premises and the ability to maintain control over them by the accused will not be inferred but must be established by proof. Such proof may consist either of evidence establishing actual knowledge by the accused, or evidence of incriminating statements or circumstances from which a jury might lawfully infer knowledge by the accused of the presence of the substances on the premises.
Webb, 648 N.W.2d at 78-79 (citations omitted).
In determining whether a defendant had constructive possession, we consider a number of factors, including: incriminating statements made by the defendant, incriminating actions by the defendant upon the police's discovery of drugs among or near the defendant's personal belongings, the defendant's fingerprints on the packages containing the drugs, and any other circumstances linking the defendant to the drugs. Webb, 648 N.W.2d at 79 (citing Emile F. Short, Annotation, Conviction of Possession of Illicit Drugs Found in Premises of Which Defendant was in Nonexclusive Possession, 56 A.L.R.3d 948 (1974)). Even if some of these factors are present, however, "we are still required to determine whether all of the facts and circumstances . . . allow a reasonable inference that the defendant knew of the drugs' presence and had control and dominion over the contraband." State v. Cashen, 666 N.W.2d 566, 571 (Iowa 2003). When the contraband is found in a vehicle occupied by more than one person, we may consider the following factors: (1) whether the contraband was in plain view, (2) whether it was with defendant's personal effects, (3) whether it was found on the same side of the car seat as the defendant or immediately next to her, (4) whether the defendant was the owner of the vehicle, and (5) whether there was suspicious activity by the defendant. Cashen, 666 N.W.2d at 572.
An inference of possession is not permitted in this case because (1) Pfeifer was not in exclusive possession of the premises — the vehicle, and (2) she did not have exclusive access to the place where the marijuana was found, in the ashtray between the driver's and passenger's seats. Therefore, the State was required to introduce other evidence that proved Pfeifer's actual knowledge of the drugs and her authority or right to maintain control over them.
The State argues the following facts provide substantial evidence of Pfeifer's guilt: (1) the vehicle and Pfeifer smelled strongly of marijuana smoke, (2) the marijuana roach in the center ashtray, and (3) the bag of marijuana found in the vehicle. We disagree.
While Pfeifer's proximity to the marijuana cannot be used to infer knowledge, see Cashen, 666 N.W.2d at 572, the strong smell of marijuana may be sufficient to prove Pfeifer knew the marijuana was in the vehicle. However, we conclude this fact, without more, is insufficient to prove Pfeifer had dominion and control over the marijuana.
The State was required to show more than Pfeifer's proximity to the marijuana roach found in the center ashtray to prove dominion and control. Cashen, 666 N.W.2d at 572. We conclude it failed to do so.
Pfeifer did not own the vehicle. No marijuana was found on her person or with her personal effects. The other incriminating evidence recovered during search of the vehicle was found on the driver's side of the vehicle. Pfeifer had been in the car for only a matter of minutes. Moreover, it was dark when she entered the vehicle, and the officer admitted that the seeds and stems — which were not taken into evidence or tested to determine whether they were in fact marijuana — could not be seen in the dark.
Officer Atteberry, on cross-examination, testified he pulled out the ashtray from its half-open position to confirm the presence of the marijuana roach. It is unclear from the testimony whether a passenger, entering the vehicle in the dark, would have been able to see the marijuana roach.
The disparate reactions of Fisher and Pfeifer to Officer Atteberry could lead to the conclusion the marijuana belonged to Fisher. See Henderson, 696 N.W.2d at 9. Pfeifer agreed to speak with the officer and allowed a search of her purse and her person. She answered the officer's questions and requested a urine test. Fisher, in contrast, refused to speak with officers. In a subsequent search of Fisher's person, officers found a large quantity of cash, which the officers opined was from the sale of marijuana.
The smell of marijuana and Pfeiffer's mere proximity to the contraband are insufficient to support a finding of constructive possession. We reverse the judgment and sentence of the district court.