Opinion
No. 2-578 / 01-1441
Filed November 15, 2002
Appeal from the Iowa District Court for Webster County, JOEL E. SWANSON, Judge.
Steburg contends newly discovered evidence related to his drug convictions warrants a new trial. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Ron Robertsen, County Attorney, and Ricki Williamson, Assistant County Attorney, for appellee.
Heard by HUITINK, P.J., and MAHAN and VAITHESWARAN, JJ.
In this second appeal from a judgment and sentence on various drug-related offenses, Tate Steburg contends the district court should have granted him a new trial based on newly discovered evidence. He also challenges the legality of his sentence. We affirm.
I. Background Facts and Proceedings
Steburg was arrested for driving with a suspended license. At the time of his arrest, Michael Mallinger was seated in the passenger seat of Steburg's truck. Backup officers patted Mallinger down and began a search of the vehicle incident to Steburg's arrest. They found a marijuana cigarette in the ashtray and $2470 inside the dashboard. The officers then performed a second pat down search of Mallinger and felt something concealed in his pants. At this point, Mallinger attempted to flee and, while doing so, tossed away a black pouch. The bag was later retrieved. It contained methamphetamines, amphetamines, mescaline, drug paraphernalia, including a scale and baggies, and a credit union card with Steburg's name on it. Mallinger was apprehended.
Steburg and Mallinger were both charged with possession of methamphetamine with intent to deliver, possession of mescaline with intent to deliver, and failure to possess a drug tax stamp. Iowa Code §§ 124.401(1)(b)(7), 124.411, 124.401(1)(c), 453B.1, 453B.3 and 453B.12 (1999). Steburg was also charged with possession of marijuana and, later, with driving while suspended. Iowa Code §§ 124.401(5); 321.218(1). Steburg's and Mallinger's cases were severed. At Steburg's trial, Mallinger testified that the black pouch, its contents, and the cash found inside the truck belonged to Steburg.
A jury found Steburg guilty as charged. He moved for a new trial, alleging a jail mate of Mallinger named John Hayes was willing to testify that Mallinger admitted to framing Steburg. The court denied the motion and Steburg appealed. Our court reversed the district court's ruling and remanded for specific findings on the four elements of proof required to order a new trial and on Hayes's credibility. On remand, the court again denied the motion for new trial after making the required findings. This appeal followed.
II. Newly Discovered Evidence
Steburg contends Hayes's statement was newly discovered evidence entitling him to a new trial. To obtain a new trial on the basis of newly discovered evidence, a defendant must show: 1) the evidence was discovered after the verdict, 2) the evidence could not have been discovered earlier in the exercise of due diligence, 3) the evidence is material and not simply cumulative or impeaching and 4) the evidence probably would have changed the result in the case. See Iowa R.Crim.P. 2.24(2)( b)(8); State v. Romeo, 542 N.W.2d 543, 550 (Iowa 1996).
The district court ruled that the first two elements were satisfied, found the third materiality element "highly questionable," and, with respect to the fourth element, stated, "[t]he Court cannot conceive in any way how the testimony of John Hayes would have changed the result of this trial." Our review of this ruling is for abuse of discretion. State v. Smith, 573 N.W.2d 14, 17 (Iowa 1997); State v. Weaver, 554 N.W.2d 240, 244 (Iowa 1996) overruled on other grounds by State v. Hallum, 585 N.W.2d 249 (Iowa 1998).
We find no abuse in the district court's analysis of the fourth element. In determining whether newly discovered evidence probably would have changed the result at trial, we examine the district court's ruling on the proffered new evidence in relation to the strength or weakness of the State's proof of guilt. Weaver, 554 N.W.2d at 249. Hayes testified Mallinger admitted to framing Steburg by putting Steburg's identification card into a pouch of drugs belonging to Mallinger. The court afforded Hayes "no credibility." The court noted Hayes "was nervous as evidenced by the transcript, was unclear as to what Michael Mallinger had actually told him and it was apparent that he was attempting to "say the right thing' for Tate Steburg."
In contrast, the court found Mallinger's testimony "unshakeable" and consistent with his trial testimony. These credibility determinations are entitled to deference. Id. at 245. Notably, Mallinger's credibility was a key issue at trial. Despite thorough impeachment of Mallinger and evidence suggesting Steburg had no knowledge of the drugs, the jury chose to believe Mallinger's version of events. Under these circumstances, we conclude the district court did not abuse its discretion in ruling that Hayes' testimony probably would not have changed the outcome. As our highest court stated in Weaver, "[t]he district court in an extensive ruling evaluated the newly-discovered evidence and assessed the credibility and weight of the new witnesses' testimony against the complete trial record and thus was in a good position to determine what evidence would and would not probably change the result at trial." Id. at 250. That language is equally applicable here.
Steburg argues the court's credibility determination was based on the flawed premise that Hayes was "sought out" by Steburg. However, other observations also support the court's credibility determination.
III. Legality of Sentence
Steburg contends the court's judgment for possession of methamphetamine with intent to deliver more than five grams is illegal because the jury was not instructed and did not make a finding on the quantity of methamphetamine in his possession. Steburg obtained a ruling on this issue in 1999, following imposition of the court's judgment, but did not raise the issue in his first appeal. He contends, however, that challenges to the legality of a sentence may be raised at any time. We agree that a sentence in excess of that prescribed by law may be challenged at any time. Tindell v. State, 629 N.W.2d 357, 360 (Iowa 2001). This is not such a challenge.
Steburg is not contesting the sentence imposed by the district court but the State's asserted failure to prove that he possessed more than five grams of methamphetamine. See Iowa Code § 124.401(1)(b)(7). This is a challenge to the sufficiency of the evidence supporting the finding of guilt. See State v. Adney, 639 N.W.2d 246, 252 (Iowa Ct.App. 2001); State v. Rivera, 614 N.W.2d 581, 582 (Iowa Ct.App. 2000). Cf. State v. Royer, 632 N.W.2d 905, 909 (finding no factual basis for a plea to manufacture of five or more grams of methamphetamine where State failed to prove defendant in fact manufactured five or more grams of methamphetamine).
To preserve this issue for review, Steburg was required to raise it in a motion for judgment of acquittal and again on direct appeal. See State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). Steburg did neither. Therefore, we cannot consider the issue. Cf. State v. Hall, 249 N.W.2d 843, 845 (Iowa 1977) (determining defendant could not enlarge a "very constricted area of inquiry" ordered in limited remand); State v. O'Shea, 634 N.W.2d 150, 158 (Iowa Ct.App. 2001) (concluding district court lacked authority to consider renewed motion for judgment of acquittal following limited remand on different issue). We affirm the district court's denial of Steburg's new trial motion as well as his judgment and sentence.
His motion for judgment of acquittal challenged "each and every element" of the crime but did not specifically make reference to the absence of proof of the quantity of methamphetamine. See State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996) (motion failed to refer to "threat" or "anything of value" elements raised on appeal).