Opinion
No. 4-765 / 03-2083
Filed December 22, 2004
Appeal from the Iowa District Court for Muscatine County, Patrick J. Madden, Judge.
Shandricka Childress appeals from her convictions and sentences for possession of cocaine base with intent to deliver and possession of marijuana. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, for appellant.
Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, Gary Allison, County Attorney, and Alan Ostergren, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
Shandricka Childress appeals from her convictions and sentences for possession of cocaine base (crack cocaine) with intent to deliver in violation of Iowa Code section 124.401(1)(c)(3) (2003) and possession of marijuana in violation of Iowa Code section 124.401(5). We affirm in part, reverse in part, and remand.
I. Background Facts Proceedings
On August 6, 2003, Muscatine County Deputy Sheriff Michael Bailey stopped a car for a traffic violation. When Bailey walked to the front of the car he noticed two female passengers inside and a marijuana pipe located in the console between them. Bailey then asked the passenger, Childress, to get out of the car. After a pat down search produced a Ziplock bag containing four individually wrapped rocks of crack cocaine, Childress was arrested. A search of the vehicle produced no other drugs or drug paraphernalia. A small amount of marijuana was later found in Childress's waistband at the county jail.
On August 12, 2003, the State charged Childress with possession of a controlled substance with intent to deliver, to wit: crack cocaine (Count I); introduction of a controlled substance into a detention facility (Count II); and possession of a controlled substance, to wit: marijuana (Count III). Prior to trial on Count I, the State dismissed Count II, and Childress filed a written guilty plea to Count III. On October 21, 2003, a jury found Childress guilty of Count I.
The court thereafter denied Childress's posttrial motions and sentenced her to a suspended ten-year term of imprisonment, with three years of probation under Count I, and sentenced Childress to serve six months in the county jail and ordered her to pay a $250 fine under Count III. Childress appeals.
On appeal, Childress raises the following issues for review:
I. THE STATE PRESENTED INSUFFICIENT EVIDENCE TO CONVICT DEFENDANT OF POSSESSION OF COCAINE BASE WITH THE INTENT TO DELIVER.
II. THE COURT ERRED IN APPLYING THE WRONG STANDARD IN DENYING [CHILDRESS'S] MOTION FOR A NEW TRIAL.
III. THE SENTENCING COURT FAILED TO EXERCISE DISCRETION WITH RESPECT TO THE IMPOSITION OF THE FINE FOR 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. 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).
In determining the sufficiency of the evidence, we view the record in a light most favorable to the State. State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct.App. 1998). Direct and circumstantial evidence are equally probative. Kirchner, 600 N.W.2d at 334. While a verdict can rest on circumstantial evidence alone, it must at least raise a fair inference of guilt as to each essential element of the crime. Id.
Childress argues the State failed to prove she intended to deliver crack cocaine. We disagree.
"Because it is difficult to prove intent by direct evidence, proof of intent usually consists of circumstantial evidence and the inferences that can be drawn from that evidence." State v. Adams, 554 N.W.2d 686, 692 (Iowa 1996) (citation omitted). During the trial on Count I, the State presented evidence that Childress possessed four individually-wrapped rocks of crack cocaine, weighing .16, .17, .32, and .53 grams. Division of Narcotics Enforcement Special Agent Daniel Stepleton testified that the crack cocaine Childress possessed "[was] packaged in a manner that's consistent with distribution of crack cocaine," ranging from $20 to $50 rocks. See State v. See, 532 N.W.2d 166, 169 (Iowa Ct.App. 1995) (stating "quantity and packaging of a controlled substance may be construed as indicia of an intent to deliver"). He further opined:
In my experience, four rocks of crack cocaine would be maybe toward that, would maybe lean toward she was going to utilize one rock for consumption but the other three would be to defray the cost of the one rock, so the delivery could support the habit, so to speak. Using and delivering.
We also note that neither search of Childress's person or the car produced any paraphernalia used to ingest crack cocaine. We therefore find substantial evidence raising a fair inference of Childress's intent to deliver crack cocaine. We affirm on this issue.
III. New Trial
We review a denial of a motion for new trial for abuse of discretion. State v. Atley, 564 N.W.2d 817, 821 (Iowa 1997). In ruling on a motion for new trial, "the court must independently consider whether the verdict is contrary to the weight of the evidence and that a miscarriage of justice may have resulted." State v. Scalise, 660 N.W.2d 58, 65-66 (Iowa 2003). The court must not approach the evidence in a light "most favorable to the verdict." Id. at 65.
Childress contends the trial court applied the incorrect standard in ruling on her motion for new trial. She believes "the trial court erred in failing to make its own determination that the verdict was contrary to the evidence," when it denied her motion for new trial under Count I. The State concedes, and we agree, the trial court utilized an improper standard in ruling on Childress's motion for new trial.
In ruling on Childress's motion, the court stated:
Okay. Yeah, I'm going to overrule the motions in both instances. Clearly, there was substantial evidence that justified an inference of guilt in the matter. I don't have any problem with that. And I don't have any problem upholding the jury's verdict, either. One of the problems I have is with the standard, and the way I prefer to phrase it is that I believe a reasonable jury could conclude that the preponderance of credible evidence supported conviction. I prefer not to be in a position, unless the appellate courts tell me I have to be, where I simply substitute my judgment for that of the jury. So I've been looking at this more could a reasonable jury find that the weight of evidence supports a guilty verdict, and I think a reasonable jury could, so I'm going to overrule your motions and go into the —
. . . .
My finding today is it's not — it is a reasonable jury could find the evidence, the weight of credible evidence, supports conviction. And therefore I support what I think was a reasonable jury decision.
Because the court failed to make an independent evaluation of the evidence, we vacate the trial court's ruling denying Childress's motion for new trial and remand for a new determination on that issue.
IV. Sentencing on Count III
We review sentencing challenges for errors at law. State v. Liddell, 672 N.W.2d 805, 815 (Iowa 2003). "A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion or a defect in the sentencing procedure, such as trial court consideration of impermissible factors." Id. (citation omitted). "Where a court fails to exercise its discretion because it erroneously believes it has no discretion, a remand for resentencing is required." State v. Lee, 561 N.W.2d 353, 354 (Iowa 1997).
Childress argues the court "wrongly believed it had only one choice" but to impose a $250 fine pursuant to her guilty plea under Count III. The State concedes the prosecutor and trial court were wrong in concluding the court was without discretion in ordering the fine.
Childress pled guilty to Count III, possession of marijuana in violation of Iowa Code section 124.401(5). This section specifically provides that "[a]ll or any part of a sentence imposed pursuant to this subsection may be suspended. . . ." Id.
During sentencing, the prosecutor and the court stated:
PROSECUTOR: The only thing that I think of that pertains to this matter is a $250 fine is mandatory on [Count III]. I ask the Court's sentence to reflect that.
THE COURT: I'm sorry. That was actually — oh that's right. It's $250, and it didn't say which it was in the plea agreement, so we'll go ahead and have a $250 —
These statements demonstrate the court failed to exercise any discretion in imposing a $250 fine under Count III. That portion of the sentence therefore is vacated and we remand for resentencing on that issue.