Opinion
No. 1-946 / 01-0072.
Filed February 20, 2002.
Appeal from the Iowa District Court for Polk County, SCOTT D. ROSENBERG, Judge.
Earl Sanders appeals from his conviction and sentence for solicitation of a felony. AFFIRMED.
Cynthia Tofflemire, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Sharon Hall, Assistant Attorney General, for appellee.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
Earl Sanders appeals from his conviction and sentence for solicitation of a felony in violation of Iowa Code section 705.1 (1999). Sanders argues the district court erred in failing to grant his motion for judgment of acquittal based upon insufficient evidence to support the jury verdict. Sanders also raises a due process claim. We affirm.
On June 27, 2000, Des Moines police officers arrived at a local residence to investigate drug trafficking. They initially arrested several individuals. Sanders arrived later in the evening and knocked on the porch door. Officer Patrick Hickey, posing as a drug dealer, and Sanders had the following conversation:
HICKEY: What do you want?
SANDERS: You know what I want. Don't make me say. I don't want to say it with all these kids around.
HICKEY: What do you want?
SANDERS: A 50.
Sanders was arrested and then stated to officers, "I was here basically to buy crack. You knew why I was here. I'm not going to play games."
Iowa Code section 705.1 provides as follows:
Any person who commands, entreats, or otherwise attempts to persuade another to commit a particular felony or aggravated misdemeanor, with the intent that such act be done and under circumstances which corroborates that intent by clear and convincing evidence, solicits such other to commit that felony or aggravated misdemeanor. One who solicits another to commit a felony of any class commits a class "D" felony. One who solicits another to commit an aggravated misdemeanor commits an aggravated misdemeanor.
Sanders alleges that his actions do not constitute solicitation. We disagree. Solicitation is an offense "where the crime is in the asking". State v. Anderson, 618 N.W.2d 369, 372 (Iowa 2000) (quoting State v. Howard, 7 Ohio Misc.2d 45, 455 N.E.2d 29, 30 (Mun. Ct. 1983)). Our supreme court held in Anderson that acquiescence following a suggestion of criminal activity does not constitute solicitation. Anderson, 618 N.W.2d at 373. Unlike Anderson, no one suggested Sanders participate in criminal activity. After a careful review of the record, we conclude a reasonable jury could conclude that Sanders intended to solicit the delivery of a controlled substance. Substantial evidence exists to support his conviction. Therefore, the district court was justified in denying Sanders motion for judgment of acquittal.
We further conclude Sanders' due process argument is without merit and must fail.
AFFIRMED.