Opinion
No. 2-836 / 02-0356.
Filed December 11, 2002.
Appeal from the Iowa District Court for Polk County, DOUGLAS STASKAL, Judge.
Defendant appeals from the judgment and sentence for his conviction of possession of ephedrine or pseudoephedrine with intent to use it to manufacture a controlled substance. REVERSED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Stephanie Cox, Assistant County Attorney, for appellee.
Considered by VOGEL, P.J., and ZIMMER and HECHT, JJ.
Defendant Brett Dullard appeals from his judgment and sentence for possession of ephedrine or pseudoephedrine with intent to use it to manufacture a controlled substance in violation of Iowa Code section 124.401(4) (2001). He claims the district court erroneously admitted hearsay evidence and that the evidence was insufficient to support his conviction. Dullard also raises an ineffective assistance of counsel claim. For reasons set forth below, we reverse.
I. Background Facts and Proceedings.
On May 31, 2001, officers from the Des Moines Police Department went to 2920 East Maple to investigate a report of a methamphetamine lab. The officers knocked on the front door and the side door of the house. Dullard eventually answered the front door. One of the officers believed defendant lived at the house with his mother. Officers phoned Dullard's mother at work and asked her to return home. After she arrived home, she consented to a search of the residence.
The search of the home and a detached garage revealed potential methamphetamine precursors. Officers found a scanner and a plastic baggie containing a white substance in the house. The substance tested negative for controlled substances.
In the detached garage, officers located and seized six cans of starting fluid, a sack of a white granular substance, two metal cylinders, glass jars, plastic pitchers, a small spiral notebook, a container of acetone, a container of Coleman camping fluid, and three unopened boxes of Benadryl.
In a car parked in the driveway, officers discovered an air tank sprayer and two stainless steel and brass hoses and fittings. The officers believed that the car belonged to a female who was associated with the defendant.
The State filed a trial information charging Dullard with possession of ephedrine or pseudoephedrine with intent to use it as a precursor and possession of ether with intent to use it as a precursor. Jury trial commenced on February 13, 2002. The jury found Dullard guilty of the ephedrine or pseudoephedrine charge and not guilty for the ether charge. The district court sentenced Dullard to an indeterminate term of imprisonment not to exceed eight years as a second or subsequent offender. Dullard appeals.
II. Alleged Hearsay.
Dullard claims the district court erroneously admitted the small spiral notebook found in a desk in the garage because it contained hearsay. We review questions regarding hearsay for correction of errors at law. State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998). Contrary to the State's assertion, we conclude defendant properly preserved error. See State v. Martin, 385 N.W.2d 549, 551-52 (Iowa 1986) (holding error preserved where both trial court and the State were aware of defendant's argument).
Hearsay "is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." Iowa R. Evid. 5.801(c). The admission of hearsay is presumed prejudicial unless the contrary is shown. Ross, 573 N.W.2d at 910. We look to the true purpose of the out-of-court statement and do not accept blindly the offering party's stated purpose. State v. Summage, 532 N.W.2d 485, 487 (Iowa Ct.App. 1995). A statement admitted without reference to its truth or falsity is not hearsay. State v. Hilleshiem, 305 N.W.2d 710, 712 (Iowa 1981). If we determine that the offer of the alleged hearsay was not for an improper purpose, we may affirm the trial court's decision on any ground appearing in the record. See DeVoss v. State, 648 N.W.2d 56, 61 (Iowa 2002).
During trial, the State offered into evidence a small spiral bound notebook with the following note:
B —
I had to go inside to pee calm my nerves somewhat down.
When I came out to go get Brian I walked over to the street North of here there sat a black white w/ the dude out of his car facing our own direction. No one else was there with him.
The record does not reveal who authored the note. Dullard objected to the notebook on the basis that it was hearsay and that it lacked foundation. The State argued the notebook was not offered to prove the truth of the matter asserted. The district court overruled the defendant's objection. On appeal, Dullard renews his claim that the note is inadmissible hearsay. He argues that the statement was introduced to show the author of the note was concerned about a police presence.
The following is the pertinent excerpt from the questioning of Officer Steve Kees, including the discourse surrounding the objection.
Q: Is that the notebook you referred to? A: Yes, it is. Q: Why did you seize that item? A: It had a handwritten note here.
[Defendant]: Objection. Hearsay. No foundation. Also, no authentication as to the author.
[Prosecution]: I'm not offering it for the truth. It's not hearsay.The Court: Overruled. Q: Why did you seize that item?
A: It had a handwritten note which whoever wrote it was very paranoid about the police being in the area of 2920 Maple.Q: You have no idea who wrote that, correct? A: I do not. . . . . Q: Why did you seize that?
A: Simply because it's — in my estimation, it's a drug quality note.
The State first contends the note was not offered to prove the truth of the matter asserted. We disagree. Among other things, the note indicates that its author was concerned about a police presence. The record makes clear the State introduced the note to suggest to the jury that the author of the note and the defendant were concerned about a police presence because the defendant was involved in the manufacturing of drugs. We agree with the defendant that the note was offered to show the truth of the matter asserted in the note.
In the alternative, the State contends the note was admissible as a statement of a co-conspirator under Iowa Rule of Evidence 5.801(d)(2)(E). To determine whether a conspiracy existed, we are guided by the definition contained in Iowa Code section 706.1(1)(b) (2001). See In the Matter of Scott, 508 N.W.2d 653, 655 (Iowa 1993). Under that section, a criminal conspiracy exists if, with the intent to facilitate commission of a crime, one "[a]grees to aid another in the planning or commission of the crime or of an attempt or solicitation to commit the crime." We can admit the note as a co-conspirator's statement only if we determine there was substantial evidence of a conspiracy between defendant and the author of the note. State v. Ruiz, 496 N.W.2d 789, 792 (Iowa Ct.App. 1992). We must also find that the statements were made in furtherance of a conspiracy. Id.
In this case, we cannot conclude that substantial evidence supports the existence of a conspiracy. Several key pieces of the conspiracy puzzle are missing. There is no evidence of the identity of the author of the note. The evidence is tenuous as to whether the note was actually written to the defendant. There is also no evidence showing when or where the note was written. Further, there is no reference in the note to methamphetamine or an intent to manufacture methamphetamine. Accordingly, we conclude rule 5.801(d)(2)(E) provides no basis for admission of the note.
Because the note is hearsay, we presume it is prejudicial unless the State affirmatively shows that it is not. Ross, 573 N.W.2d at 910. The State has failed to identify any reason to support a finding that the note was not prejudicial.
III. Sufficiency of Evidence.
Dullard argues the evidence was insufficient to convict him. He claims the State failed to prove beyond a reasonable doubt that he was in possession of ephedrine or pseudoephedrine.
A. Scope of Review. We review challenges to the sufficiency of the evidence supporting a guilty verdict for correction of legal error. State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001); State v. Mitchell, 568 N.W.2d 493, 502 (Iowa 1997). We will uphold a verdict if substantial evidence supports it. Mitchell, 568 N.W.2d at 502. "Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt." Id. We view the evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the evidence in the record. Id. We consider all of the evidence in the record — not just the evidence that supports the verdict. Id.
B. Analysis. To find Dullard guilty of possession of ephedrine or pseudoephedrine with intent to use it to manufacture a controlled substance, the State had the duty to prove beyond a reasonable doubt (1) that he possessed ephedrine or pseudoephedrine, (2) that he knew the substance he possessed was ephedrine or pseudoephedrine, and (3) that he possessed the substance with the intent to manufacture methamphetamine. See Iowa Code § 124.401(4). Dullard contends the State failed to establish the possession element.
We recognize two types of possession — actual and constructive. See State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002) (citing State v. Reeves, 209 N.W.2d 18, 22 (Iowa 1973)). To establish possession, the State must prove "dominion and control." Reeves, 209 N.W.2d at 22. Dominion and control can be established vis-vis constructive possession by showing that the accused "maintains control or a right to control" the contraband. Id. In Reeves, our supreme court established the following tenets of constructive possession,
In Webb, 648 N.W.2d at 79, our supreme court affirmed its holding in State v. McDowell, 622 N.W.2d 305, 309 (Iowa 2001), which overruled State v. Simpson, 528 N.W.2d 627, 632 (Iowa 1995), and reinstated the tenets of constructive possession as set forth in Reeves, 209 N.W.2d at 22-23.
Proof of opportunity of access to a place where [contraband is] found will not, without more, support a finding of unlawful possession.
. . . .
Possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.
. . . .
If the premises on which [the contraband is] found [is] in the exclusive possession of the accused, knowledge of [its] presence on such premises coupled with his ability to maintain control over such [contraband] may be inferred. Although no further proof of knowledge by the State is required in cases of exclusive possession by the accused the inference of knowledge is rebuttable and not conclusive. But where the accused has not been in exclusive possession of the premises but only in joint possession, knowledge of the presence of the [contraband] on the premises and the ability to maintain control over [the contraband] by the accused will not be inferred but must be established by proof. Such proof may consist either of evidence establishing actual knowledge by the accused, or evidence of incriminating statements or circumstances from which a jury might lawfully infer knowledge by the accused of the presence of the [contraband] on the premises.
Webb, 648 N.W.2d at 77 (emphasis in original) (quoting Reeves, 209 N.W.2d at 22-23). The issue of constructive possession is a fact-sensitive inquiry. Id. at 79 (citing State v. Harris, 647 So.2d 337, 339 (La. 1994)).
Dullard maintains that there is a lack of evidence in the record to establish his constructive possession of the three packs of Benadryl tablets seized from a desk in the detached garage. He claims the circumstances do not support his knowledge of and ability to maintain control over the tablets. He claims there was no evidence to even show that he lived at the residence other than the testimony of Officer Steven Kees. Although Officer Kees testified that he knew Dullard resided at the home with his mother, Dullard asserts that there was no other evidence offered to substantiate the officer's claim. He also claims his connection to the house is further attenuated by the police action taken when they arrived at the house. Police called defendant's mother at work and waited for her to return so that she could give consent to search the house. Dullard maintains that these circumstances coupled with the lack of evidence connecting him to the garage and its contents fail to show constructive possession.
The State, on the other hand, asserts the evidence is sufficient to support Dullard's constructive possession of the Benadryl. In support of its argument, the State relies, in large part, on the note found in the garage. It contends it is reasonable to infer that the note was written to Dullard. In light of our conclusion that the note is inadmissible hearsay, we do not consider this evidence. The State also maintains that, based on Dullard's residence with his mother, he had access to the garage. The State points out that some of the items necessary to support a methamphetamine lab were found in Dullard's girlfriend's car. Police searched the vehicle, parked in the driveway of the residence, and discovered sprayers, hoses, and some fittings. These items were new and free from any residue.
As mentioned, when reviewing a claim of insufficient evidence, we view the evidence in the light most favorable to the State. Mitchell, 568 N.W.2d at 502. This includes legitimate inferences and presumptions that may fairly and reasonably be deduced from the evidence in the record. Id.
Defendant was obviously not in exclusive possession of the premises at 2920 East Maple. However, his assertion that the evidence does not support that he lived with his mother is without merit. Although the evidence regarding his residence was not overwhelming, it was sufficient to establish that he was in joint possession of the premises.
In Webb, our supreme court found the circumstances surrounding the defendant's joint possession of the premises did not establish constructive possession of contraband found in his apartment. Webb, 648 N.W.2d at 80-81. The defendant shared an apartment with a woman who consented to a search of their apartment. Id. at 75. Police discovered drug paraphernalia in a bedroom, a brick of marijuana in the refrigerator's freezer, and an unloaded handgun under the bathroom sink of a different bedroom. Id. Webb was found guilty of possession of a controlled substance, failure to affix a drug tax stamp, and child endangerment. Id. The only evidence introduced on the issue of constructive possession was $336 in cash found on Webb and his statement that the woman he lived with gave the money to him. Id. at 80. The State also introduced evidence of Webb's guilty plea to possession of marijuana with intent to deliver nine months earlier. Id. at 81. Webb made no incriminating statements nor did he exhibit any suspicious behavior in connection with the discovery of the contraband. Id. at 80 (citing Gaynus v. State, 380 So.2d 1174, 1175 (Fla.Dist.Ct.App. 1980)). The court found this evidence too tenuous and speculative to support an inference of constructive possession. Id. at 80-81.
Because Dullard was in joint possession, the jury was not allowed to infer his knowledge and ability to maintain control of the Benadryl. See Reeves, 209 N.W.2d at 22-23. Direct evidence of Dullard's knowledge and ability to control is lacking; there are no incriminating statements made by Dullard nor is there any other direct evidence linking him to the Benadryl. See id. Further, review of the record reveals no indication that Dullard behaved suspiciously in connection with the discovery of the Benadryl. See Webb, 648 N.W.2d at 80 (citing Gaynus, 380 So.2d at 1175). The State offered no evidence to show that Dullard had access to the garage or control over its contents. The only evidence on this point is the note by an unidentified author which was found in the same desk as the Benadryl. We have already concluded that the note was inadmissible hearsay.
Viewing the evidence in the light most favorable to the State, we conclude the evidence was insufficient to show that Dullard was in constructive possession of the Benadryl tablets. Therefore, we reverse Dullard's conviction for possession of ephedrine or pseudoephedrine with intent to manufacture methamphetamine.