Opinion
No. 3-365 / 02-0340
Filed July 23, 2003.
Appeal from the Iowa District Court for Polk County, Robert D. Wilson, Judge.
Thompson appeals his conviction and sentence for possession of a controlled substance (third offense) as a habitual offender, contending his motion for judgment of acquittal was improperly denied and that he was improperly fined.
JUDGMENT AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART.Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, John Sarcone, County Attorney, and Chuck Kenville, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
The State charged Lewis Bishop Thompson, III with possession of a controlled substance (third offense) as a habitual offender. See Iowa Code §§ 124.401(5), 902.8, 902.9(3) (2001). Following the State's case, Thompson moved for judgment of acquittal, contending there was insufficient evidence to support the elements of the charge. The district court denied the motion and a jury found Thompson guilty as charged. The court then held a bench trial on the enhancements and found Thompson to be a third and habitual offender. The court sentenced him to a prison term and assessed a fined of $750.
On appeal, Thompson contends the court: 1) should not have denied his motion for judgment of acquittal and 2) lacked authority to impose a fine. Our review of both issues is on error. State v. Maring, 619 N.W.2d 393, 394 (Iowa 2000); State v. Halterman, 630 N.W.2d 611, 613 (Iowa Ct.App. 2001).
I. Motion for Judgment of Acquittal
The jury was instructed that the State would have to prove Thompson "knowingly possessed marijuana" and "knew that the substance he possessed was marijuana." Viewing the evidence in the light most favorable to the State, we believe the State presented sufficient evidence to generate a jury question on these elements. See State v. Khalsa, 542 N.W.2d 263, 265-66 (Iowa Ct.App. 1995).
Des Moines police officers took Thompson into custody for urinating in public and interfering with official acts. They placed him in a holding area and handcuffed him to a bench. When the officers were ready to book Thompson, they un-cuffed him and had him stand. As Thompson did so, the officers noticed a cigarette package directly underneath him. In the package was a plastic baggie containing a green leafy substance later identified as marijuana. This package was not on the bench before the officers placed Thompson there. Although there was evidence Thompson told police that the package was not his and police must have planted it on him, it was the jury's function to sort through this conflicting evidence. Maring, 619 N.W.2d at 395. Accordingly, we affirm the district court's denial of Thompson's motion for judgment of acquittal.
II. Fine
Thompson next contends the district court did not have authority to impose a fine of $750. We agree.
Iowa Code section 124.401(5) provides that a person who possesses a controlled substance and has previously been convicted two or more times of possessing a controlled substance shall be guilty of a Class D felony. Thompson was accordingly sentenced pursuant to Iowa Code section 902.9, governing felons. That provision authorizes a fine of $750 only for class D felons who are not habitual offenders. See Iowa Code § 902.9(5). Those who are habitual offenders only receive a term of incarceration. See Iowa Code § 902.9(3). We accordingly vacate that portion of the court's sentence imposing a fine. See State v. Lee, 561 N.W.2d 353, 355 (Iowa 1997).
The provision does not authorize a fine for third time offenders. Cf. State v. Carstens, 594 N.W.2d 436, 437 (Iowa 1999) (holding that although defendant was sentenced pursuant to Iowa Code section 902.9(3), section 124.401(1)(c) specifically authorized a fine).
Our court addressed a virtually identical issue in State v. Thompkins, No. 01-0552 (Iowa Ct.App. Feb. 20, 2002). We held that the provision governing Class C felons did not afford a district court authority to impose a $1000 fine on each count of second-degree robbery as a habitual offender.