Opinion
No. 4-834 / 03-1954
Filed February 24, 2005
Appeal from the Iowa District Court for Page County, James S. Heckerman, Judge.
Corey Michael Erickson appeals convictions for arson in the first degree, willful injury causing serious injury, manufacturing methamphetamine with intent to deliver, and unlawful possession of a precursor. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant Appellate Defender, for appellant.
Corey Michael Erickson, Anamosa, appellant pro se.
Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, Richard Davidson, County Attorney, and Tony Almquist, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Corey Michael Erickson appeals his judgment and sentence following a jury trial whereby he was convicted of arson in the first degree in violation of Iowa Code sections 712.1, 712.2 (2001), willful injury causing serious injury in violation of Iowa Code section 708.4, manufacturing methamphetamine with intent to deliver in violation of Iowa Code section 124.401(1)(c)(6), and unlawful possession of a precursor in violation of Iowa Code section 124.401(4)(b). Erickson, through his appellate counsel, contends the district court erred in denying his motion for judgment of acquittal, challenging the sufficiency of the evidence supporting his convictions, and further contends he was denied effective assistance of counsel when his trial counsel failed to object to the presentation of evidence of his prior bad acts to the jury.
Erickson also filed a pro se appellate brief urging reversal of his convictions because the State failed to establish his guilt beyond a reasonable doubt as required by the Due Process Clause of the Fourteenth Amendment. Erickson next asserts that his trial counsel was ineffective for failing to call certain witnesses, failing to challenge the chain of custody of certain evidence, failing to point out certain facts to the jury, and failing to take depositions.
Background Facts.
Viewing the evidence in the light most favorable to the State, a reasonable juror could have found the following facts.
Erickson had been living with Melissa Hedinger at her apartment for about two months and had been making methamphetamine there. In fact, Erickson's methamphetamine production at Hedinger's apartment was a serious point of contention between Hedinger and Erickson as Hedinger did not approve of this activity. Eventually, Erickson began to worry that Hedinger was going to turn him in to the police for his methamphetamine production. This fear was fueled by Erickson's discovery of a journal kept by Hedinger that detailed, among other things, his illicit methamphetamine production activities.
On October 6, 2002, Erickson and Hedinger started to argue. Some of the things said and done led Erickson to believe Hedinger was going to turn on him. Erickson then went to the home of Lisa and Dusty Foster and explained that Hedinger had stolen some of his money and was going to "rat him out" and asked for a gun. They did not comply with his request, but together drove back to Hedinger's apartment.
Once at the apartment, Erickson went in alone. He demanded his money and confronted Hedinger about his belief that she was going to inform the police of his illicit activities. Erickson then threw Coleman fuel on Hedinger and ignited it with his cigarette lighter. The fire blew out the patio door and badly burned Hedinger. Erickson ran from the apartment, fled the scene with the Fosters, and then "laid low" for a few days.
The testimony at trial indicates that there were jars of Coleman lighter fluid throughout Hedinger's apartment as Erickson used this as a solvent in making methamphetamine.
When the fire department arrived on the scene, Fire Chief Williams met Hedinger on the apartment steps as she was being escorted to an ambulance. Hedinger was badly burned and in a state of shock. When asked what had happened, Hedinger replied that she was smoking a cigarette and dropped a jar of Coleman fuel. Once inside the apartment Chief Williams discovered the jars of fuel. Chief Williams also noticed that Hedinger's story about dropping a jar did not coincide with what he saw inside the apartment as there was no jar on the floor. Chief Williams then decided to call in the fire marshal's office to further the investigation.
When Agent John Ticer of the State Fire Marshal Division of the State of Iowa Department of Public Safety arrived on the scene, he observed the burn pattern on the linoleum floor of the kitchen where Hedinger was ignited. He concluded this burn pattern was inconsistent with Hedinger's statement that she dropped a jar of Coleman fuel. He then began a search of the apartment. During the course of this search Agent Ticer found, in addition to the jars of Coleman fuel, empty Sudafed (pseudoephedrine) packages, a stripped lithium battery, and lithium battery packaging, rock salt, two hydrochloric acid generators, aquarium tubing, and coffee filters containing "sludge." According to Special Agent Mike Mitten of the State of Iowa Division of Narcotic's Enforcement, these items are all used in the production of methamphetamine.
"Sludge" is a byproduct of methamphetamine production containing, among other things, remnants of pseudoephedrine caplets.
Issues. A. Sufficiency of the Evidence
The reasoning and conclusions of this section shall also apply to Erickson's related claim in his pro se brief that the State failed to produce evidence sufficient to prove his guilt beyond a reasonable doubt as required by the federal Due Process Clause.
We review challenges to the sufficiency of the evidence underlying the verdict for correction of errors at law. Iowa R. App. P. 6.4.
"We will uphold a jury verdict under a sufficiency-of-the-evidence challenge if it is supported by substantial evidence." State v. Casady, 597 N.W.2d 801, 804 (Iowa 1999). Evidence is substantial if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Kostman, 585 N.W.2d 209, 211 (Iowa 1998). "We review the evidence in the light most favorable to the State, and this includes all legitimate inferences that may fairly and reasonably be deduced from the evidence." Casady, 597 N.W.2d at 804. Erickson maintains that the State did not offer evidence sufficient for it to carry its burden in establishing that he manufactured methamphetamine, or that he unlawfully possessed a precursor with intent to manufacture methamphetamine.
Erickson, through his appellate defender and in his pro se brief, also asserts that there was insufficient evidence to convict him of First Degree Arson and Willful injury. However neither brief provides any authority for these claims; thus we deem both waived. See Iowa R.App. P. 6.14(1)( c). Furthermore, even if they were not waived, we have fully reviewed the record and find the evidence sufficient to support both of these convictions.
1. Manufacture of Methamphetamine
Iowa Code section 124.401 makes it unlawful for anyone to manufacture, deliver, or possess a controlled substance or to conspire to do so. See Iowa Code § 124.401(1). Thus, one of the methods for violating Iowa Code section 124.401(1) is the actual manufacture of methamphetamine. See Casady, 597 N.W.2d at 807. Hedinger testified that Erickson had a key to, slept at, had clothes at, and generally lived with her in the apartment where the components of methamphetamine production were found. Hedinger also testified that she personally saw Erickson making methamphetamine in her apartment. Hedinger's journal was also introduced into evidence by the State, substantiating Hedinger's testimony as it too indicated that Erickson had made methamphetamine at her apartment. Moreover, the state produced the testimony of Mandy Bruning, a neighbor of Hedinger. Bruning testified that on one occasion when she was spending the night with Hedinger, she woke in the middle of the night and witnessed Erickson making methamphetamine.
Erickson attempts to counter this evidence by asserting that the witnesses should not be believed and that, absent their testimony, under the holding in State v. Speicher, 625 N.W.2d 738 (2001), the remaining circumstantial evidence is not sufficient to support a conviction for violation of Iowa Code section 124.401(1). However, it is well established that the credibility of witnesses is for the jury to decide except for those rare circumstances where the testimony is absurd, impossible, or self-contradictory. See Kostman, 585 N.W.2d at 211 (noting that generally, the credibility of witnesses is left to the jury; however a witness's testimony "may be so impossible, absurd, and self-contradictory that the court should deem it a nullity"). The record clearly establishes that this is not one of those circumstances; therefore the jury was free to believe the testimony of Erickson's manufacture of methamphetamine. Consequently, unlike the facts in Speicher, where there was no evidence of the defendant's actual participation in the manufacture of methamphetamine, there was eyewitness testimony of Erickson's production of methamphetamine in Hedinger's apartment. Speicher, 625 N.W.2d at 742 (noting that the evidence demonstrated the defendant's presence in a methamphetamine lab, but not his involvement in the manufacturing process). Moreover, this testimony was corroborated by circumstantial evidence of the presence in the apartment of almost every necessary component for the manufacture of methamphetamine along with the indicators of actual production. This evidence is sufficient for a reasonable juror to conclude beyond a reasonable doubt that Erickson manufactured methamphetamine.
The State presented testimony that Dr. Pepper bottles present in the apartment tested acidic which is consistent with them being "smoked" for hydrogen chloride gas, a key step in the methamphetamine manufacturing process. In addition the State presented evidence that sludge, a byproduct of methamphetamine production was found in the apartment.
2. Possession of Pseudoephedrine
In order to demonstrate "possession" of contraband, in this case pseudoephedrine, the State must prove "(1) the accused exercised dominion and control (i.e., possession) over the contraband, (2) the accused had knowledge of the contraband's presence, and (3) the accused had knowledge that the material was [contraband]." State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002) (quoting State v. Reeves, 209 N.W.2d 18, 21 (Iowa 1973)). The State need not prove actual possession; proof of constructive possession is enough. See id. "The control of the contraband or the right to control it in the absence of actual possession is constructive possession." Id. (emphasis supplied by the Iowa Supreme Court).
Erickson relies on our supreme court's decision in State v. Webb for his position that the evidence was not sufficient to demonstrate he constructively possessed pseudoephedrine. In State v. Webb our supreme court decisively returned to the rules for proving constructive possession first announced in State v. Reeves in 1973. See State v. Webb, 648 N.W.2d 72, 78-79 (Iowa 2002). Significantly, this means when the accused does not have exclusive possession of the premises where the illicit substance is found, but only joint possession, the accused's knowledge of the presence of the illicit substances and the ability of the accused to maintain control over them cannot be inferred but must be established by proof. Id. at 78.
The evidence produced by the State demonstrates that Erickson had joint possession of Hedinger's apartment and that pseudoephedrine packaging was found in Hedinger's apartment after Erickson left. No actual pseudoephedrine tablets were found. However, Agent Ticer and Agent Mittan testified that "pink sludge" was found and that this was consistent with the use of Sudafed tablets in the production of methamphetamine. Yet, Agent Ticer also testified that the pink sludge was a byproduct of methamphetamine production, that it contained, "the binders, the sugars, the starches, everything that holds that pill together, the only thing that's really supporting the ephedrine or the pseudoephedrine." Therefore, the presence of "sludge" was not tantamount to the presence of pseudoephedrine. Moreover, the testimony of Hedinger and Bruning indicated that they had seen Erickson manufacture methamphetamine on previous dates, not on October 6. See Webb, 648 N.W.2d at 82 (indicating the fact a defendant knew marijuana was in an apartment on a previous occasion and had the ability to maintain control over it is irrelevant as to whether or not he knew it was present or had ability to maintain control over it on the date in question). Thus, the State did not offer any proof that Erickson on October 6, 2002, maintained control or the right to control pseudoephedrine as it failed to offer any evidence of the actual presence of pseudoephedrine in Hedinger's apartment. Accordingly, we conclude the evidence was insufficient to support his conviction for the constructive possession of the precursor, pseudoephedrine; Erickson's motion for judgment of acquittal should have been granted on this count. We therefore reverse and remand for dismissal of this charge. See State v. Westeen, 591 N.W.2d 203, 212 (Iowa 1999) (reversing conviction and remanding for dismissal of charge on which defendant was entitled to judgment of acquittal based on insufficiency of the evidence).
Other testimony elicited by the State demonstrated that methamphetamine cannot be produced without pseudoephedrine.
The trial information alleges that Erickson "on or about October 6, 2002 . . . possessed pseudoephedrine with the intent to use the substance to unlawfully manufacture methamphetamine. . . ."
B. Ineffective Assistance of Counsel Claims
To establish a claim of ineffective assistance of counsel, a defendant has the burden to prove: (1) counsel failed in an essential duty; and (2) prejudice resulted from this failure. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Westeen, 591 N.W.2d at 207. An ineffective assistance of counsel claim fails if the defendant is unable to prove either prong. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999).
1. Prior Bad Acts
Erickson, through his appellate counsel, argues that his trial counsel was ineffective for failing to object to the submission to the jury of evidence of his prior bad acts. However, in advancing this proposition Erickson is not in compliance Iowa Rule of Appellate Procedure 6.14. That rule requires, among other things, that every proposition put forth in the brief, which is either found in or supported by the record, be followed by a specific reference to the record or appendix in accordance with Iowa Rule Appellate Procedure 6.14(7). See Iowa R.App. P. 6.14(1)( f). Erickson has failed to identify the evidence of prior bad acts, the admission of which he now appeals, by specific reference to either the appendix or the record. Thus, to reach the merits of Erickson's argument regarding evidence of prior drug activity would require us to assume a partisan role and undertake his research and advocacy. This role is one we refuse to assume. See Inghram v. Dairyland Mut. Ins. Co., 215 N.W.2d 239, 240 (Iowa 1974); see also Estate of Leonard v. Swift, 656 N.W.2d 132, 147 n. 4 (Iowa 2003) (refusing, where brief contained inaccurate reference to place in appendix where pertinent court orders could be found, to undertake an independent review of the record); Hoefer v. Wis. Educ. Ass'n Ins. Trust, 470 N.W.2d 336, 342 (Iowa 1991) (stating failure to cite to record or transcript for factual support permits court "to ignore [a party's] contentions altogether").
The State's brief divides Erickson's "prior bad acts" argument into evidence of prior violence towards the victim and evidence of prior drug activity. Neither of Erickson's briefs makes such a division.
The only citation provided by Erickson in the argument section of his brief pertaining to evidence of prior bad acts is the citation to twenty-three pages of the appendix and trial transcript meant to support the proposition that his trial counsel "obviously recognized the prejudicial nature of the prior bad acts evidence, as he made repeated objections to the evidence before the court . . . [but] failed to object, however, when the testimony was actually offered to the jury." These broad citations do not tell us what evidence of prior bad acts was allegedly improperly admitted.
2. Remaining Claims
Erickson next asserts, in his pro se brief, that his trial counsel was ineffective for failing to call certain witnesses, failing to challenge certain evidence, and failing to take depositions. The record is inadequate to evaluate these claims. They should therefore be preserved for possible postconviction relief proceedings. See Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999).
Erickson also later assets in his brief the related claim that the failure to call these witnesses constituted a denial of his constitutional right to compulsory process. This argument is in effect encompassed within his ineffective assistance of counsel claim.
Erickson also asserts he was denied a fair trial due to adverse publicity. This claim was not raised or ruled upon by the district court nor was it raised as a claim of ineffective assistance of trial counsel. Thus, it will not be addressed. See State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001) (noting that an ineffective assistance of counsel claim is an exception to the error preservation requirement); Benavides v. J.C. Penney Life Ins. Co., 539 N.W.2d 352, 356 (Iowa 1995) (reciting the general rule of error preservation that a claim not raised or ruled upon by the district court will not be addressed for the first time on appeal).