Opinion
No. 2-355 / 01-0899
Filed January 15, 2003
Appeal from the Iowa District Court for Polk County, Robert D. Wilson, Judge.
Defendant appeals his convictions for conspiracy to manufacture methamphetamine, manufacturing methamphetamine, possession of pseudoephedrine and anhydrous ammonia with the intent to use each as a precursor to the manufacture of methamphetamine, and eluding or attempting to elude a law enforcement vehicle. AFFIRMED AS MODIFIED.
Frank Burnette of Burnette Kelley, Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, John P. Sarcone, County Attorney, and Daniel C. Voogt, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Vaitheswaran, JJ.
Thomas R. Domenig appeals his convictions, following jury trial, for conspiracy to manufacture methamphetamine, manufacturing methamphetamine, possession of pseudoephedrine and anhydrous ammonia with the intent to use each as a precursor to the manufacture of methamphetamine, and eluding or attempting to elude a law enforcement vehicle. On appeal he argues (1) the district court erred in denying his motion in limine in violation of Iowa Rule of Evidence 5.403, (2) the court erred in overruling his objections to the admission of certain "blister packs" of Sudafed and a photograph of a cooler as irrelevant, remote and unfairly prejudicial, (3) the evidence was insufficient to support the jury verdicts beyond a reasonable doubt, and (4) his trial counsel was ineffective for failing to object to the State's use of photographs at trial and for allowing the trial court to state in front of the jury that he had chosen not to testify. We affirm as modified.
Domenig initially states in his brief that this is an appeal from all five of his convictions. However, he makes no argument concerning his conviction for eluding a law enforcement vehicle. Failure to state, argue, or cite authority in support of an issue may be deemed waiver of that issue. Iowa R.App.P. 6.14(1)( c). Accordingly, we deem any issues with regard to the eluding charge to be waived.
I. BACKGROUND FACTS AND PROCEEDINGS.
Shortly after 4:30 p.m. on October 28, 2000 Kirby Bragg, an Iowa game warden with the Iowa Department of Natural Resources (DNR), observed a white van with an open door parked along a gravel road in northern Polk County and saw a person cross the road, go to the ditch, and return to the van. Bragg suspected the persons in the van might be hunting illegally from the vehicle and thus initiated a stop with his emergency lights. The driver of the van eventually pulled into a driveway and stopped. Bragg approached the vehicle, identified himself, stated the purpose of the stop, and observed two males in the vehicle. It was later determined the driver of the van was Kevin Jones, the passenger was Thomas Domenig, and the van was registered to Domenig.
Bragg also saw a white propane or LP tank between the front seats with a hose taped to a brass fitting on the tank. The fitting had become discolored and turned an "aqua blue-greenish color." Bragg asked Jones and Domenig to get out of the vehicle and performed a pat-down search on both men, finding two hypodermic needles on Domenig's person. He then ran a check on both men and learned there was a warrant for Jones's arrest and that both men had suspended licenses. Bragg then radioed for assistance and another DNR officer, Officer Lonneman, responded within a few minutes.
As the other officer pulled up behind Bragg the van took off heading north. Both officers pursued the van with their emergency lights on. Shortly after the chase began the officers observed a "white powdery substance," baggies, and other unidentifiable items coming out of both the passenger and driver side windows of the van. They next noticed a white cloud of vapor come out of the passenger side window. Bragg testified he recognized the vapor as anhydrous ammonia by its smell. The discharge continued for approximately twenty seconds and then a white LP tank was thrown out the passenger window and bounced into the ditch. During the chase Lonneman kept other law enforcement agencies informed of their location via radio.
The high-speed chase continued into and through Ankeny. In Ankeny the van drove around stop sticks which had been placed on the road by Ankeny police. Ankeny police then joined the pursuit. While at an intersection in Ankeny Bragg and Lonneman observed more items being thrown out of both sides of the van and Lonneman recalled seeing white pills bouncing off the pavement. The van continue south on Highway 69 until eventually it was forced off the road by State Trooper Troy Hildreth, causing the van to drive through a fence and into a grassy field in a residential area. After hitting a berm, becoming airborne, and landing hard, the van finally stopped
Domenig hit his head on the windshield and thus remained in the van when it came to a stop. Jones however left the van and fled on foot until he was tackled and handcuffed by Trooper Hildreth. Both men were arrested, taken into custody, and transported to the hospital.
Trooper Hildreth and the ambulance crew smelled a strong chemical odor coming from the van and requested state narcotics agents come to the scene. Officer Bragg recognized the smell as anhydrous ammonia coming from the van. Prior to leaving the scene Lonneman was given a black zippered bag and a police scanner which had been recovered from the van. The bag contained a scale and receipts for muriatic acid and lithium batteries.
On December 11, 2000 Jones and Domenig were charged by joint trial information with conspiracy to manufacture methamphetamine (Count I), manufacture of methamphetamine (Count II), possession of ephedrine or pseudoephedrine with the intent to use it as a precursor (Count III), possession of anhydrous ammonia with the intent to use it as a precursor (Count IV), and eluding or attempting to elude a pursuing law enforcement vehicle (Count V), in violation of Iowa Code sections 124.401(1)(b)(7) (1999), 124.401(1)(b)(7) (1999), 124.401(4) (Supp. 1999), 124.401(4) (Supp. 1999), and 321.279(3) (Supp. 1999) respectively. Jones and Domenig were tried jointly before a jury commencing April 9, 2001.
At trial Department of Criminal Investigations chemist Terry Rowe testified about collecting evidence from Domenig's van after 5:45 p.m. on the evening of the chase. He observed several items in the van which could be used in, or were indicative of, the manufacture of methamphetamine, including a Coleman fuel can, a can of acetone, a can of denatured alcohol, lithium batteries, empty blister packs of Sudafed Cold and Allergy pills (Sudafed) which contain pseudoephedrine, a propane tank with an altered valve, and a garden sprayer. Rowe explained how each of these items could be used in the manufacturing of methamphetamine. He also described having documented and photographed several items found in and along the road near where the chase had originated, including a propane tank with some blue discoloration around the valve, parts of lithium batteries, a piece of tubing, and baggies with white powder residue.
Mr. Rowe testified he then went to the Ankeny police department to collect the items found by Ankeny police officers Schall and Laurence, which included an envelope containing a white powdery substance and a blister pack containing six Sudafed tablets. Officer Schall testified he and Officer Laurence had collected these items approximately five minutes after failing to stop the van with the stop sticks at the intersection in Ankeny where additional items had been observed thrown from the van by Officers Lonneman and Bragg.
The morning following the chase and arrest of Domenig, DNR officers Lonneman and Bragg returned to where the van had originally been stopped. There they found several more empty Sudafed packets. Lonneman continued approximately one mile north to where he had seen additional items being thrown out of the van and collected two items which appeared to be a "burnt substance." Lonneman testified that when he placed these items in the bag they began to swell, a reaction consistent with lithium strips. These additional items were turned over to Rowe.
At trial Nila Bremer, a criminalist for the Iowa Criminalistics Laboratory, testified regarding the process of making methamphetamine known as the "lithium-ammonia" or "Nazi" method and the results of her analysis of the substances found during the investigation. Bremer stated that the six intact Sudafed Cold and Allergy pills which were found do contain a salt of pseudoephedrine and the multiple identical empty packages which were found would also have had the same ingredients. She testified that State's exhibit 33 contained a bag with black flakes from lithium batteries and a bag of white powder containing pseudoephedrine, consistent with crushed tablets that contain pseudoephedrine. She also found that one of the other bags of white powder did not contain any controlled substance or precursor.
Based on Bremer's analysis and experience she opined that the items seized were consistent with the manufacture of methamphetamine using the lithium-ammonia method. Based on the number of empty pseudoephedrine packages found Bremer estimated the "practical yield" of methamphetamine would be between seven and nine grams. She also opined that the six intact Sudafed tablets would yield three-tenths of a gram of methamphetamine. On cross-examination Bremer agreed that none of the evidence contained any amount of finished methamphetamine.
Narcotics agent David Metz, a member of the clandestine emergency response team, also testified at trial. Metz was present the evening of the chase initially assisting in the collection of evidence at the location where the chase began. He testified that at the scene where the chase had commenced there was an LP tank containing anhydrous ammonia, battery casings and innards and lithium battery wrappings, several blister packs of Sudafed, a cooler, a couple of plastic baggies containing white powder, and a black hose with a valve on it. He stated he recognized the smell of ammonia coming from the LP tank, the valve on the hose tested basic for ammonia, and it had a blue discoloration consistent with ammonia use. Metz testified he found twelve empty blister packs and ten boxes for pseudoephedrine a little further along the chase route. Based on his experience and knowledge, Metz testified regarding how each of these various items could be used in manufacturing methamphetamine. After reviewing the items found in the van and along the roadside throughout the route of the chase, Metz concluded the items were consistent with the manufacturing of methamphetamine.
During the trial Domenig objected to the admission of State's exhibits 8 and 36. Exhibit 8 was a photograph of the cooler recovered by Metz in the ditch near where the chase commenced and exhibit 36 was a sealed bag containing several empty boxes and blister packs of Sudafed Cold and Allergy tablets and a package for a mini tubing cutter. Domenig argued State's exhibit 8 was not relevant because there was no evidence connecting the cooler to him. He also objected to State's exhibit 36 based on the remoteness in time that it was collected and an assertion it had not been connected to him in any way. The court overruled both objections.
Domenig moved for judgment of acquittal at the close of the State's evidence arguing the State had failed to establish a prima facie case against him. The court overruled the motion, finding a sufficient factual basis to generate a jury question on each count. The jury returned guilty verdicts on all counts against both defendants on April 11, 2001. Domenig was sentenced on May 29, 2001. In its written sentencing order the trial court adjudged Domenig guilty of all five crimes. It merged Counts I and II for sentencing. It sentenced Domenig to an indeterminate term of no more than twenty-five years on Counts I and II, and an indeterminate term of no more than five years on each of the remaining counts. The court ordered the terms to be served consecutively. Domenig appeals his convictions.
II. MERITS.
Domenig argues on appeal (1) the court erred in denying his motion in limine, in violation of rule of evidence 5.403, (2) the court erred in overruling his objections to the admission of certain blister packs of Sudafed and a photograph of a cooler found along the side of the road as irrelevant, remote and unfairly prejudicial, (3) the evidence was insufficient to support his convictions, and (4) trial counsel was ineffective in failing to object to the State's use of photographic evidence at trial and for allowing the trial court to state in front of the jury that he had chosen not to testify. We address these issues separately.
A. Denial of Motion in Limine.
Just prior to trial codefendant Jones filed a motion in limine requesting that "any evidence relating to `bubble packaging' obtained by law enforcement officers be excluded pursuant to Rule 403 of the Iowa Rules of Evidence." He contended the bubble packaging was not found in his direct possession and control, the officers could not state the bubble packaging definitely came from the van, and the probative value of the evidence was far outweighed by its unfair prejudice and potential to confuse or mislead the jury. Domenig orally joined in the motion. The court heard arguments on the motion and overruled it, finding the bubble packaging evidence relevant and not unfairly prejudicial under Iowa Rule of Evidence 5.403.
Domenig argues on appeal that the district court erred in denying the motion in limine, in violation of Iowa Rule of Evidence 5.403. Specifically, he asserts the court should have excluded all evidence which was collected remote in time and place from him, because its probative value was not substantially outweighed by the danger of unfair prejudice.
Domenig's brief may be read as arguing that all of the evidence collected on the side of the road should have been excluded. However, the motion in limine specifically sought only to exclude the Sudafed bubble packaging. Therefore, only that evidence is involved in this issue.
The State contends the court's ruling on the motion was not an unequivocal holding on the issue raised and thus in order to preserver error Domenig was required to object to the evidence during trial. See State v. Harlow, 325 N.W.2d 90, 91 (Iowa 1982) (holding that in order to preserve error on a motion in limine ruling counsel must object to evidence when it is offered at trial unless the ruling on the motion is an unequivocal holding on the issue). We find the court's ruling was unequivocal on the issue of the admissibility of the bubble packaging. A hearing was held, counsel presented legal arguments, and the court ruled the evidence was admissible. Thus, no further objection was necessary at trial in order to preserve the issue for our review.
On appellate review of an evidentiary ruling concerning Iowa Rule of Evidence 5.403, we grant the district court wide latitude regarding admissibility and will disturb the court's ruling only upon finding an abuse of discretion. State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998). To show an abuse of discretion, one must show the court exercised its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Greene, 592 N.W.2d 24, 27 (Iowa 1999). Even if an abuse of discretion is found, reversal is required only when the abuse is prejudicial. Id. For us to hold the trial court abused its discretion in determining the danger of unfair prejudice created by the admission of evidence did not substantially outweigh its probative value, the complaining party must show that the trial court's action was unreasonable in the light of attending circumstances. State v. Cott, 283 N.W.2d 324, 329 (Iowa 1979).
An objection to the admissibility of evidence based on remoteness raises an issue of relevancy. State v. Sharkey, 311 N.W.2d 68, 70 (Iowa 1981). Evidence is relevant when it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Iowa R. Evid. 5.401; see also Sharkey, 311 N.W.2d at 70 (stating relevant evidence is that which renders the desired inference more probable than it would be without the evidence). Even relevant evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice. Iowa R. Evid. 5.403. Relevant evidence is inherently prejudicial in the sense of being detrimental to the opposing party's case. State v. Delaney, 526 N.W.2d 170, 175 (Iowa Ct.App. 1994). We look beyond this type of inherent prejudice to whether the evidence has an undue tendency to suggest a decision on an improper basis, appeals to the sympathies of the jury, or otherwise might cause the jury to base their decision on something other than the relevant legal propositions. Id. The complaining party has the burden of establishing the trial court abused its discretion in the balancing process under rule 5.403. Cott, 283 N.W.2d at 329.
"Although evidence may itself appear relevant, it may relate to a time so remote from the date of the happening of an incident that it has little probative value." Sharkey, 311 N.W.2d at 70. Whether evidence which is otherwise relevant should nevertheless be excluded because of remoteness is a decision which rests in the sound discretion of the trial court. Id.
We conclude the Sudafed bubble packages were relevant to establish Domenig's connection to one of the charged precursors (pseudoephedrine) used in the process of manufacturing methamphetamine. All of the expert testimony at trial established this type of pill is commonly used in the manufacturing of methamphetamine. The empty packages found on the roadside were of the same brand name and type as the packages found in Domenig's van. Domenig was the registered owner of the van and a passenger in the van, and the DNR officers saw many items being thrown out of the passenger side of the van where Domenig was sitting. This evidence circumstantially establishes Domenig's connection to the bubble packages and thus the packages' relevance at trial.
We further find the short period of time between when officers saw Domenig throw various items out of passenger window of the van and when the packaging was recovered, some being collected the evening of the incident and some the next morning, does not result in the evidence being irrelevant or its probative value being substantially outweighed by the danger of unfair prejudice or confusion. Furthermore, the weight to be given to the packaging, based on when it was collected together with the surrounding circumstances, was properly before the jury. See State v. Casady, 491 N.W.2d 782, 785 (Iowa 1992) (the remoteness of evidence generally affects the weight, rather than the admissibility of the evidence). Therefore, we conclude the trial court did not abuse its discretion in finding the bubble packaging relevant and that its probative value was not substantially outweighed by the danger of unfair prejudice under rule 5.403.
B. Objections to Evidence.
Domenig next argues that the district court erred in overruling his objections to the admission of certain "blister packs" of Sudafed (State's Exhibit 36) and a photograph of an empty cooler (State's Exhibit 8) as remote, irrelevant, and unfairly prejudicial. Here, as above, we review this challenge to the admission of evidence for an abuse of discretion and will reverse only if the court's discretion was exercised on grounds clearly untenable or to an extent clearly unreasonable. Greene, 592 N.W.2d at 27; State v. Query, 594 N.W.2d 438, 443 (Iowa Ct.App. 1999).
During trial and in this appeal the Sudafed packaging is alternatively referred to as "bubble packs" and "blister packs." It is clear from our review of the evidence that bubble and blister packaging is the same thing and thus there is no need to distinguish between the two in determining these issues. We use the terms interchangeably in this opinion.
For all of the same reasons set forth above, we find the trial court did not abuse its discretion in allowing the admission of the blister packs into evidence. They were clearly relevant to both the possession of a precursor and manufacturing charges. Furthermore, the short period of time between the defendant's arrest and the retrieval of the packages does not destroy their relevance or result in their probative value being outweighed by the danger of unfair prejudice.
The photo of the cooler was admitted during the testimony of Agent Metz when he listed a blue and white cooler as one of the items found at the site where the high-speed chase of the defendants had begun. Other items collected in the immediate vicinity of the cooler included an LP tank containing anhydrous ammonia, a hose and valve showing probable exposure to ammonia, portions of cut up lithium batteries, and a baggie containing traces of pseudoephedrine. Agent Metz testified, based on his training and experience, that all of these items were consistent with the manufacturing of methamphetamine. He stated the cooler could be used in many different ways in the process of manufacturing methamphetamine, such as storing anhydrous, pills, liquid ether, or fuel. However, on cross-examination Metz did note no fingerprinting had been done on the cooler and that the tests performed on the cooler did not show it had been carrying any methamphetamine or precursors.
Based on Metz's testimony regarding the possible uses for such a cooler in the manufacturing of methamphetamine and its close proximity to other evidence linking Domenig to the possession of precursors for the manufacturing of methamphetamine, we conclude the cooler was relevant to the drug-related charges. Furthermore, for all of the same reasons set forth above we conclude the challenged evidence was not collected too remote in time or place from Domenig so as to make it irrelevant or unfairly prejudicial to him. Additionally, as with the Sudafed packaging, the weight to be given the evidence in light of the totality of the circumstances was properly for the jury. We find the trial court did not abuse its discretion in overruling Domenig's objection to the admission of the evidence concerning the cooler.
C. Sufficiency of the Evidence.
Domenig next argues on appeal that there was insufficient evidence to support the jury verdicts beyond a reasonable doubt on all findings of guilt. We address his challenge with regard to each conviction properly before us. Our scope of review and many of the standards of review that apply in sufficiency-of-the-evidence challenges are set forth in State v. Webb, 648 N.W.2d 72, 76-77 (Iowa 2002) and need not be repeated here. The following additional standards are applicable as well. Inherent in our standard of review of jury verdicts in criminal cases is the recognition that the jury was free to reject certain evidence, and credit other evidence. State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). A jury is free to believe or disbelieve any testimony as it chooses and to give as much weight to the evidence as, in its judgment, such evidence should receive. State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996); State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993).
As above, we need only address Domenig's arguments with regard to Counts I-IV as he has waived any issue regarding the eluding charge (Count V).
The State argues Domenig failed to preserve error on this issue because his motion for judgment of acquittal did not challenge specific elements of each offense but only generally alleged the evidence was not sufficient to establish a prima facie case. Error is not preserved when a motion for judgment of acquittal does not point out the specific deficiencies in the evidence. Greene, 592 N.W.2d at 29; State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996). We seriously question whether Domenig's sufficiency of the evidence claims are properly before us. However, assuming without deciding that error was preserved, we will deal with the merits of his claims.
1. Manufacturing of methamphetamine.
In Count II the State charged Domenig with manufacturing more than five grams of methamphetamine in violation of section 124.401(1)(b)(7) and the jury found him guilty as charged. In order for Domenig to be found guilty of manufacture of more than five grams of methamphetamine there must be substantial evidence that the manufacturing process in fact yielded methamphetamine, its salts, isomers, or salts of isomers, or analogs or methamphetamine, or any compound, mixture, or preparation containing any quantity or detectable amount thereof. Iowa Code § 124.401(1)(b)(7); State v. Royer, 632 N.W.2d 905, 908 (Iowa 2001); State v. Adney, 639 N.W.2d 246, 252 (Iowa Ct.App. 2001).
There is no evidence in the record that any amount of methamphetamine, or any amount of a mixture or substance containing any amount of methamphetamine, was found in Domenig's van, was found anywhere along the chase route, or is otherwise involved in this case. The trial court therefore should have sustained Domenig's motion for judgment of acquittal on the manufacturing charge for lack of substantial evidence to support a necessary element, that Domenig had manufactured methamphetamine. Adney, 639 N.W.2d at 652. It thus should not have adjudged him guilty of manufacturing methamphetamine. We must vacate that adjudication of guilt. However, because the trial court correctly merged Counts I and II for sentencing and imposed only one sentence for those two counts, we can sever the adjudication of guilt for manufacturing without disturbing the sentence imposed by the trial court. See State v. Maghee, 573 N.W.2d 1, 6-7, 13-14 (Iowa 1997) (vacating sentence for conspiracy to possess with intent to deliver a controlled substance where defendant was improperly sentenced for both conspiracy to possess with intent to deliver and possession with intent to deliver, two alternative means of committing the same crime).
2. Possession of precursors
Iowa Code section 124.401(4) in relevant part prohibits possession of any product containing pseudoephedrine or anhydrous ammonia "with the intent to use the product to manufacture any controlled substance." Iowa Code § 124.401(4)(b), (d) (Supp. 1999). Thus, in order to convict Domenig of possession of the charged precursors the State had to prove he knowingly possessed these products with the specific intent to use the products in the manufacture of methamphetamine.
On the afternoon of the incidents in question Domenig was a passenger in a van registered in his name. Officer Bragg observed a white LP tank sitting in the front of the van between Domenig and Jones. He suspected it contained anhydrous ammonia because the discoloration of the brass valve on the tank was consistent with such. Then, shortly after the start of the high speed chase both Officers Bragg and Lonneman observed items being thrown out of both sides of Domenig's van, including plastic baggies and white powder. They also specifically observed a white cloud of vapor being discharged from the passenger side of the van where Domenig was sitting, and identified a strong odor of anhydrous ammonia from the vapor. Immediately thereafter someone, apparently Domenig, threw the LP tank out of the passenger side window. The tank and hose were recovered a few hours later where the officers had observed them thrown out of the van, and both tested "basic" or consistent with the presence of anhydrous ammonia. Agent Metz identified a strong odor of ammonia coming from the tank when he recovered it on the roadside. In addition, Officer Bragg and Trooper Hildreth both identified a strong odor of anhydrous ammonia in Domenig's van after his arrest and a second LP tank with similar discoloration was found in the van. This tank also tested "basic," consistent with anhydrous ammonia.
As discussed above, after Domenig's arrest Agent Metz and Mr. Rowe collected several blister packs and boxes which had contained Sudafed pills along the road where the chase began. More empty Sudafed blister packs were recovered in the same area the next morning. A baggie containing crushed pseudoephedrine tablets and black flakes from a lithium battery was also found near this location on the evening of the chase. Furthermore, immediately following the chase Ankeny police officers collected additional empty blister packs of Sudafed, as well as one containing six pills, at the intersection in Ankeny were Officer Lonneman had seen additional items thrown from the van windows. During the search of Domenig's van a partial package of Sudafed bearing the same brand name as all of the other packages was found.
Additional items found in Domenig's van included Coleman fuel, acetone, lithium batteries, a receipt for lithium batteries, denatured alcohol, a garden sprayer, salt, gloves, a scale, and a police scanner. Additional disassembled parts of lithium batteries and lithium residue were found near the start of the chase in close proximity to the LP tank and empty Sudafed packages.
Criminalist Bremer testified as to the process of manufacturing methamphetamine and the ingredients necessary. The first step involved obtaining pill or tablets containing ephedrine or pseudoephedrine and either crushing or dissolving the tablets. Bremer noted several other ingredients used in the other steps of the process which were found in Domenig's van and along the chase route. Rowe and Metz also both testified that, based on their experience and expertise, several of the items found in his van were consistent with the manufacturing of methamphetamine.
Based on all of the evidence set forth above, we conclude there was sufficient evidence for a jury to find, beyond a reasonable doubt, that Domenig knowingly possessed pseudoephedrine and anhydrous ammonia with the intent to use the items as precursors to the manufacture of methamphetamine.
3. Conspiracy to manufacture methamphetamine.
Domenig argues there was insufficient evidence for the jury to find him guilty of conspiracy to manufacture methamphetamine because, (1) there was no finished methamphetamine or mixture containing methamphetamine found, (2) the seized evidence did not include all of the ingredients or equipment necessary to make finished methamphetamine, (3) much of the evidence collected along the chase route cannot be directly linked to him, (4) and there was no evidence of an agreement between Jones and him to manufacture methamphetamine.
First, we have already determined that a fact finder could link certain evidence found along the chase route to Domenig because it was either similar to evidence found in his van or officers witnessed him throwing it out his window. Second, a finished product is not required to establish guilt under the conspiracy alternative of section 124.401(1). Royer, 632 N.W.2d at 907; State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999). Nor is it necessary to possess all of the ingredients or equipment necessary to produce finished methamphetamine to support a conspiracy to manufacture conviction. "While the State must show an overt act toward the accomplishment of the conspiracy, Iowa Code § 706.1(3), it did not have to prove the completed act." Casady, 597 N.W.2d at 807. Accordingly, Domenig's first three arguments as to the sufficiency of evidence on the conspiracy charge must fail.
This leaves only Domenig's argument that there was no evidence of an agreement between Jones and him to manufacture methamphetamine for us to address. "A conspiracy is a combination or agreement between two or more persons to do or accomplish a criminal or unlawful act, or to do a lawful act in an unlawful manner." State v. Ross, 573 N.W.2d 906, 914 (Iowa 1998); see also Iowa Code § 706.1(1) (defining conspiracy). Such an agreement may be established by direct or circumstantial evidence. State v. Speicher, 625 N.W.2d 738, 741 (Iowa 2001); State v. Mapp, 585 N.W.2d 746, 748 (Iowa 1998).
Circumstantial evidence includes the declarations and conduct of the alleged conspirators and all reasonable inferences arising from such evidence. Importantly, an agreement need not be — and often times is not — formal and express. A tacit understanding — one " inherent in and inferred from the circumstances" — is sufficient to sustain a conspiracy conviction. Speicher, 625 N.W.2d at 742 (citations omitted) (emphasis added).
Here, Jones was driving a van registered to Domenig with Domenig as a passenger. Upon realizing Officer Bragg had called for backup, both Jones and Domenig got into the van and sped away, leading law enforcement officers on the ensuing high-speed chase detailed above. During the chase several officers saw both men throwing items related to the manufacture of methamphetamine from the van. This appeared to include Domenig releasing anhydrous ammonia from the LP tank and then the throwing the tank itself out the window while Jones continued to elude law enforcement officers. Several additional items related to the process of manufacturing methamphetamine were found in Domenig's van which, of course, was occupied by both Jones and Domenig.
Viewing the evidence in the light most favorable to the State, we conclude there was substantial circumstantial proof of a conspiracy to manufacture methamphetamine and Domenig's part in it. Based on Jones's and Domenig's conduct and actions and the circumstances surrounding them, a rational juror could infer that Jones and Domenig had agreed to manufacture methamphetamine and one or both of them committed an overt act in furtherance of that purpose.
D. Ineffective Assistance of Counsel.
Finally, Domenig contends his trial counsel was ineffective for failing to object to the State's use of photographs of physical evidence during trial when the actual evidence itself was available for offer, and for allowing the trial court to state in front of the jury that he had chosen not to testify. When there is an alleged denial of constitutional rights, such as ineffective assistance of counsel, we evaluate the totality of the circumstances in a de novo review. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). While we often preserve ineffective assistance of counsel claims for a postconviction proceeding, we consider such claims on direct appeal if the record is sufficient. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001); State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999). Neither party here asserts the record is insufficient. We find the record adequate and address the claims.
Many of the standards required for a defendant to prevail on a claim of ineffective assistance of counsel are well established and need not be repeated here. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 141-44 (Iowa 2001). A reviewing court may look to either prong to dispose of an ineffective assistance claim. Ledezma, 626 N.W.2d at 142. We need not decide whether counsel's performance was deficient before examining the prejudice prong. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). A defendant is not entitled to perfect representation, but rather only that which is within the normal range of competency. State v. Artzer, 609 N.W.2d 526, 531 (Iowa 2000).
The State argues Domenig has waived his ineffective assistance claims by failing to cite any legal authority in support of either of his claims. Failure by appellant to cite authority in support of an issue may be deemed waiver of that issue. Iowa R.App.P. 6.14(1)( c); Pierce v. Staley, 587 N.W.2d 484, 486 (Iowa 1998). We agree with the State and believe Domenig has waived these issues. However, we need not rest our resolution of these issues on principles of waiver alone as we conclude that one of Domenig's claims is too general in nature to address or preserve and the other is without merit.
First, Domenig generally asserts his trial counsel should have objected to the State's use of photographs in lieu of evidentiary items in their original form. We reiterate that Domenig cites to no authority in support of this proposition. In complaining of the adequacy of an attorney's representation, it is not enough to simply complain that counsel should have done a better job, for example, should have made certain unspecified objections. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (citing State v. White, 337 N.W.2d 517, 519 (Iowa 1983)). An appellant must state specific ways in which counsel's performance was inadequate and how competent representation would have changed the outcome of the trial. Id. Domenig does not state which photographs should have been objected to, what objection(s) counsel should have made, or how the outcome of the trial would have been different had counsel objected, or objected on different grounds, to the photographs. The only assertion he makes is that the photographs were "very handy for the prosecutor with his television display." We find this claim to be too general in nature to allow us to either address it or preserve it for a possible postconviction proceeding.
Domenig's second claim is that counsel should have objected to the district court confirming in the presence of the jury that he had chosen not to testify. He argues that because of "drug paraphernalia" which came into evidence with only one objection the court's statement was prejudicial to him and the cautionary instruction given by the court was insufficient to cure this prejudice.
The record reflects that after the State had rested and motions for judgment of acquittal had been made and overruled Domenig's attorney advised the court outside the presence of the jury that Domenig had elected, after conferring with him, to follow his advice and not testify on his own behalf. Thereafter, in the presence of the jury just before reading jury instructions the court inquired, "It's my understanding that the defendants have chosen not to testify in this case, but I want to make record on both defendants. Counsel?" Domenig's counsel replied,
Yes, Your Honor. At this time my client has elected not to testify on his own behalf pursuant to my advice. We have also elected not to enter evidence through other witness testimony or other evidentiary means at this time. Mr. Domenig rests, Your Honor.
The court received a similar response from Jones's counsel. The trial court then stated to the jury,
Folks, one of the instructions that I'm going to read to you here in a little bit refers to defendants who wish not to testify. The defendants are not required to testify. No inference of guilt should be drawn from that fact. The burden remains upon the State to prove the guilt of the defendants.
Neither defendant objected to either the court's inquiry in front of the jury or to the court's reference to the contents of an impending cautionary instruction to the jury. In an instruction that the court then read to the jury and gave to the jury in writing, the court stated the defendants had decided not to testify. It instructed the jurors that the defendants were not required to testify, no inference of guilt could be drawn from the fact they had decided not to testify, and the burden of proof remained upon the State to prove their guilt. Domenig reviewed all of the jury instructions and had no exceptions, corrections or additions to the instructions.
Domenig appears to argue that his counsel's failure to object to the court's inquiry and his counsel's response was prejudicial. However, the fact Domenig had decided not to testify was also set forth in the instructions the court read to the jury and gave to the jury in writing. Domenig made no objection to any of those jury instructions, and on appeal he does not claim trial counsel was ineffective for not objecting. We find the situation here analogous to situations in which arguably inadmissible evidence which is in fact admitted is merely cumulative to properly admitted evidence. See, e.g., State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998) (holding erroneous admission of hearsay will not be found prejudicial where it is merely cumulative); State v. McCollom, 260 Iowa 977, 151 N.W.2d 519, 522 (1967) ("It is elementary that admission of evidence is not prejudicial error where substantially the same evidence is in the record without objection.").
Therefore, without determining whether trial counsel breached an essential duty by not objecting to the court's inquiry, we conclude any failure to object was not prejudicial. The same information (that Domenig had decided not to testify) was given to the jury unchallenged in Jury Instruction No. 36. Thus, the court's inquiry and counsel's response provided the jury with information which was merely cumulative to information properly before the jury and cannot be seen as prejudicial to Domenig. We conclude Domenig was not denied effective assistance of counsel due to his counsel's failure to object to this inquiry.
III. DISPOSITION
We affirm Domenig's convictions for conspiracy to manufacture methamphetamine (Count I), possession of pseudoephedrine with the intent to use it as a precursor to the manufacture of methamphetamine (Count III), possession of anhydrous ammonia with the intent to use it as a precursor to the manufacture of methamphetamine (Count IV), and eluding or attempting to elude a law enforcement vehicle (Count V). We vacate his conviction for manufacturing methamphetamine (Count II). We affirm the judgment of convictions as modified and affirm the sentences.