Opinion
No. 3-112 / 02-0073.
Filed April 30, 2003.
Appeal from the Iowa District Court for Des Moines County, Cynthia Danielson, Judge.
William Baker appeals his conviction for possession of a precursor with the intent to manufacture a controlled substance. REVERSED.
Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller and Andrew Prosser, Assistant Attorneys General, Patrick Jackson, County Attorney, and Michael Bennett and Toby Gordon, Assistant County Attorneys, for appellee.
Considered by HUITINK, P.J., and MAHAN and HECHT, JJ.
William Baker appeals his conviction for possession of a precursor with the intent to manufacture a controlled substance, in violation of Iowa Code section 124.401(4) (1999). He claims: (1) there was insufficient evidence of his intent to manufacture methamphetamine; (2) he was entitled to a new trial; and (3) the jury instructions were improper.
I. Background Facts Proceedings
On February 17, 2000, a clerk at a Coastal Mart in Burlington notified her supervisor that Baker had purchased two bottles of pseudoephedrine that day and had purchased several bottles of pseudoephedrine over approximately the past three weeks. Police officers were notified, and they found Baker at the BG BuyNBye. Baker had purchased two more bottles of pseudoephedrine, but when officers approached, he attempted to throw these bottles away. Baker had been driven to the store by a friend, Pansy Swailes. A search of Swailes's car revealed four bottles of pseudoephedrine. Baker admitted two of the bottles were his, which he had purchased at the Coastal Mart.
The clerk testified Baker came to the store about ten times and bought two bottles of pseudoephedrine each time. The bottles each contained sixty tablets.
Baker was charged under section 124.401(4), which makes it illegal to possess pseudoephedrine "with the intent to use the product as a precursor to any illegal substance or an intermediary to any controlled substance." Dean Salsberry, a member of the Southeast Iowa Narcotics Task Force, testified pseudoephedrine is used to manufacture methamphetamine. He gave the opinion that a person with a large quantity of pseudoephedrine would probably use it to manufacture methamphetamine. The State admitted there was no evidence Baker intended to manufacture methamphetamine, but it alleged he could deliver the pseudoephedrine to someone else who intended to manufacture the controlled substance.
A jury found Baker guilty of possession of a precursor with intent to manufacture a controlled substance. He was sentenced as a habitual offender and given a term of imprisonment not to exceed fifteen years. Baker appeals.
II. Sufficiency of the Evidence
Baker contends the State did not produce sufficient evidence to show he intended to manufacture methamphetamine. We review sufficiency of the evidence claims for errors at law. Iowa R.App.P. 6.4. A jury's verdict is binding if it is supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Substantial evidence is such evidence as could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct.App. 1999). We give consideration to all the evidence, not just that supporting the verdict, and view such evidence in the light most favorable to the State. State v. Adney, 639 N.W.2d 246, 250 (Iowa Ct.App. 2001).
The State admitted there was no evidence Baker intended to manufacture methamphetamine. Baker had none of the other ingredients or equipment necessary to manufacture methamphetamine. See id. at 251. Instead, the State proceeded on a theory Baker aided and abetted an unknown third person by purchasing pseudoephedrine, knowing it would be used by this third person to manufacture methamphetamine.
Aiding and abetting in a crime occurs when a person assents to or lends countenance and approval to another's criminal act either by active participation or by encouraging it in some manner prior to or at the time of its commission. State v. Wedebrand, 602 N.W.2d 186, 189 (Iowa Ct.App. 1999). An aider and abettor is held liable for the same crime as the principal would be. Iowa Code § 703.1; State v. Satern, 516 N.W.2d 839, 843 (Iowa 1994).
We find no evidence in the record to support a claim Baker was aiding and abetting another to manufacture methamphetamine. There was no evidence to show Baker gave or sold the pseudoephedrine to someone else. There was no evidence Baker knew how to manufacture methamphetamine. There was no evidence linking Baker in any way to the manufacture of methamphetamine. It is not illegal to possess pseudoephedrine if there is no evidence of intent to use the pseudoephedrine to manufacture methamphetamine. See United States v. Weston, 4 F.3d 672, 674 (8th Cir. 1993); State v. O'Brien, 5 S.W.3d 532, 534 (Mo.Ct.App. 1999).
We determine there is insufficient evidence in the record to support Baker's conviction for violating section 124.401(4). We reverse his conviction and sentence.