Opinion
No. 5-209 / 04-0438
Filed August 31, 2005
Appeal from the Iowa District Court for Mahaska County, Annette Scieszinski, Judge.
A defendant appeals from a judgment entered following his convictions for conspiracy to manufacture methamphetamine, possession of ethyl ether with intent to manufacture a controlled substance, and possession of anhydrous ammonia with intent to manufacture a controlled substance, alleging insufficient evidence to support his convictions. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, and Charles A. Stream, County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
Howard Hicks appeals from a judgment entered following his convictions for conspiracy to manufacture methamphetamine in violation of Iowa Code section 124.401(1)(c)(6) (2003), possession of ethyl ether with intent to manufacture a controlled substance in violation of section 124.401(4)(c), and possession of anhydrous ammonia with intent to manufacture a controlled substance in violation of section 124.401(4)(d). We affirm Hicks's convictions on the first two charges, but reverse his conviction for possession of anhydrous ammonia with intent and remand for dismissal of that charge.
I. Background Facts and Proceedings.
On April 20, 2003, Eddyville police chief Jay Andrews stopped a vehicle that matched the description of a vehicle used in a nearby robbery. The stopped vehicle was owned by the driver, Harmony Hols, and contained three other occupants. One of the backseat occupants was Howard Hicks. Chief Andrews sought and obtained Hols's consent to search the vehicle.
The police eventually determined that the Hols vehicle was not the vehicle used in the attempted robbery.
The search was conducted by Chief Andrews and two of the several law enforcement officers who joined Chief Andrews after the stop. The vehicle's trunk contained several empty mason jars and a green duffel bag. A very strong chemical odor, identified by officers on the scene as anhydrous ammonia, was emanating from the bag.
A search of the duffel bag revealed a number of items, including several propane cylinders; a bleeder valve which could be used to empty or fill the cylinders; a plastic bottle cap in which holes had been drilled and hoses inserted, which could be used as part of a two-liter soda bottle gas generator; hoses that could be used to drain anhydrous ammonia from a farm tank; four pairs of gloves, at least three of which could be used to protect the wearer's skin from anhydrous ammonia, and one of which smelled strongly of the chemical odor; a can of vehicle starter fluid whose content label stated it contained ethyl ether; strips of aluminum foil; and a plastic funnel and cups. Hicks admitted that he owned the bag, but denied ownership of the bag's contents. No other occupant of the vehicle admitted to ownership of the items in the bag.
Hicks was arrested and charged with conspiracy to manufacture methamphetamine, possession of ethyl ether with the intent to manufacture a controlled substance, and possession of anhydrous ammonia with the intent to manufacture a controlled substance. The matter was tried to a jury.
During trial the State presented evidence, through law enforcement officers, regarding the details of the stop and search and the potential use of a number of items seized. That testimony contained the following opinions, none of which were objected to by Hicks: The mason jars and most of the items in the duffle bag could be used in and were consistent with the manufacturing of methamphetamine; the strong odor coming from the bag and the gloves was that of anhydrous ammonia; and the can of starter fluid contained ethyl ether.
After the close of evidence Hicks moved for a judgment of acquittal, asserting the record contained insufficient evidence to support any of the three charges. The district court denied the motion and submitted the case to the jury, which returned guilty verdicts on all three counts. The court entered judgment and imposed sentence.
Hicks appeals. He asserts the record does not contain sufficient evidence to support any of his three convictions, and thus the verdicts must be vacated.
II. Scope and Standards of Review.
We review a challenge to the sufficiency of the evidence for errors at law. State v. Turner, 630 N.W.2d 601, 610 (Iowa 2001). A jury verdict will be upheld if it is supported by substantial evidence. Id. Substantial evidence is that evidence which is sufficient to convince a rational trier of fact, beyond a reasonable doubt, of the defendant's guilt. Id. In determining whether substantial evidence exists, we view the totality of the record in the light most favorable to the State, drawing any and all legitimate inferences that can be reasonably deduced from the evidence. State v. Williams, 574 N.W.2d 293, 296 (Iowa 1998).
Direct and circumstantial evidence is equally probative, so long as the evidence gives rise to "a fair inference of guilt as to each essential element of the crime." State v. Speicher, 625 N.W.2d 738, 741 (Iowa 2001) (citation omitted). However, the evidence must do more than raise suspicion, speculation or conjecture. Id.
III. Conspiracy.
Iowa Code section 124.401(1) makes it a crime "for any person to . . . act with, enter into a common scheme or design with, or conspire with one or more other persons to manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance. . . ." To support a conviction for conspiracy to manufacture methamphetamine the State was required to prove four elements. See Iowa Code §§ 124.401(1), 706.1 (defining conspiracy). Only the first — that Hicks agreed with one or more persons to manufacture or attempt to manufacture methamphetamine or assist another in planning or committing this crime — is at issue on appeal. See id. Hicks contends the evidence is insufficient to support the existence of any agreement between himself and another individual.
Pursuant to sections 124.401(1) and 706.1 the State was further required to prove that Hicks entered into the agreement with the intent to manufacture or promote the manufacture of methamphetamine; one or more of the conspirators committed an overt act in furtherance of the manufacturing of methamphetamine; and at least one of the co-conspirators was not a law enforcement agent or working with law enforcement when the conspiracy began.
An agreement to form a conspiracy has been described as a "concert of free wills," and "a mental confederation involving at least two persons." See Speicher, 625 N.W.2d at 741. Since a conspiracy is by nature clandestine, it will often rest upon circumstantial evidence and inferences drawn from that evidence. State v. Casady, 597 N.W.2d 801, 804-05 (Iowa 1999). The agreement need not be formal or express. Id. at 805. Rather, it is often "a tacit understanding; . . . inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the alleged conspirators." Id. (citation omitted). On the other hand, circumstantial evidence that proves mere presence at the scene of the crime or association with those involved in the crime is not sufficient to show an agreement. Speicher, 625 N.W.2d at 742.
Although prior case law on this issue is instructive, conspiracy is an inherently fact-based crime, which requires us to look to the particular facts, circumstances, and reasonable inferences in this case. When we do so, we conclude the record contains substantial evidence of an agreement between Hicks and at least one other occupant of the Hols vehicle.
Hicks was a passenger in a vehicle with three other occupants, the trunk of which contained many of the ingredients necessary to manufacture methamphetamine. The majority of those items were contained within a bag Hicks admitted owning; a bag containing gloves that smelled strongly of anhydrous ammonia, a precursor in the manufacture of methamphetamine. Although Hicks denied ownership of the bag's contents, there was no evidence the contents belonged to any other occupant. Under the circumstances the jury could have reasonably inferred that Hicks was the owner of the bag's contents, or at the very least was aware of the bag's contents and allowed his bag to be used to transport the items. The trunk also contained mason jars, another common item in a methamphetamine lab. Even if the jury inferred that Hicks and Hicks alone owned the contents of the bag, the open presence of the mason jars in the trunk would allow the jury to reasonably infer that at least one other individual in the vehicle had agreed to participate in the manufacture of methamphetamine.
The foregoing provides more than mere speculation or conjecture concerning the required agreement. Hick's conspiracy conviction was supported by substantial evidence.
IV. Possession of Ethyl Ether and Anhydrous Ammonia.
Pursuant to Iowa Code section 124.401(4), it is illegal to possess any product containing either ethyl ether or anhydrous ammonia with the intent that the product be used to manufacture a controlled substance. Iowa Code § 124.401(4)(c) (ethyl ether), (d) (anhydrous ammonia). Hicks asserts his convictions for possession of ethyl ether and anhydrous ammonia under section 124.401(4) are not supported by substantial evidence, because there was no evidence either precursor was on his person or anywhere in the vehicle. A. Ethyl Ether.
Hicks does not challenge the sufficiency of the evidence to support a conclusion that any precursor he possessed was possessed with the intent to manufacture methamphetamine.
Hicks acknowledges that vehicle starter fluid was found in a search of his duffel bag, and that law enforcement officers testified the starter fluid contained ethyl ether. However, he asserts the testimony cannot establish the presence of ethyl ether in the starter fluid because the officers are not chemists, and the starter fluid was not submitted for chemical testing to verify the presence of ethyl ether.
To the extent Hicks is attempting to challenge the foundation of the officers' testimony, we note that Hicks never objected to the testimony. Thus, any claim the court erred in admitting the evidence is not preserved for our review. See State v. Rutledge, 600 N.W.2d 324, 326 (Iowa 1999). Moreover, the officers' testimony was based upon their experience, training, and observation and, whether viewed as lay or expert opinion, constitutes valid evidence that can be relied upon by the jury. See Iowa Rs. Evid. 5.701-5.703. In addition, the label on the vehicle starting fluid, which was also admitted without objection, listed ethyl ether as a content of the fluid. See State v. Heuser, 661 N.W.2d 157, 165 (Iowa 2003) (concluding court properly admitted, over hearsay objection, content labels of pseudoephedrine and lithium battery packages).
The jury was free to place as much weight upon the foregoing evidence as it saw fit. State v. Lawrence, 559 N.W.2d 292, 296 (Iowa Ct.App. 1996). When viewed in the light most favorable to the State, the label and the officers' testimony provide substantial evidence that the starter fluid contained ethyl ether. Although Hicks does not appear to challenge the sufficiency of the evidence to support a conclusion that he was in possession of the starter fluid, we note the remainder of the record, including the fact that the starter fluid was found in a duffle bag belonging to Hicks and located in the trunk of the car in which Hicks was riding, substantially supports a finding that Hicks was in possession of the starter fluid. See State v. Kemp, 688 N.W.2d 785, 789 (Iowa 2004) (defining constructive possession). Hicks's conviction for possession of ethyl ether with the intent to manufacture a controlled substance is supported by substantial evidence.
B. Anhydrous Ammonia.
When the evidence is viewed in the light most favorable to the State, the presence of a pair of rubber gloves smelling strongly of anhydrous ammonia is not alone sufficient to support a finding that Hicks was in possession of anhydrous ammonia with the requisite intent to manufacture methamphetamine with the precursor seized. While section 124.401(4) (2003) does not expressly establish a threshold quantity of anhydrous ammonia, the statute only prohibits the possession of anhydrous ammonia "if the person possesses [it] with the intent to use the product to manufacture any controlled substance." Iowa Code § 124.401(4) (emphasis added). The plain language of the statute requires the State to prove Hicks possessed anhydrous ammonia with the specific intent to use the seized precursor in future methamphetamine production. Without proof Hicks was in possession of some quantity of anhydrous ammonia that a reasonable person could find sufficient to accomplish the intended criminal act, his conviction on this count cannot stand.
A recent Iowa Supreme Court case analyzed the 2003 version of section 124.401(4); and its analysis, we believe, supports our conclusion. In State v. Truesdell, 679 N.W.2d 611, 618 (Iowa 2004), the court held that where the evidence proved the defendant found in possession intended the precursor be used by someone else to manufacture, but was insufficient to prove defendant intended or had the present ability to use the precursor to manufacture a controlled substance, the statute was not violated. The use of the phrase "intent to use the product" in section 124.401(4) suggests (1) the defendant must intend the precursor be used in the manufacture of a controlled substance, and (2) the precursor seized must itself be capable of such a conversion. The evidence fails to support either conclusion in this case.
Iowa Code section 124.401(4) (2005) would now criminalize the possession of an identified precursor where the person in possession intends the product be used in the manufacture of a controlled substance by either himself or another person. This change to the statute, however, does nothing to alter our belief that the quantity possessed is relevant to the establishment of the intent element of section 124.401(4). See Truesdell, 679 N.W.2d at 618 (noting the substantial quantity of a precursor possessed by the defendant was "strong circumstantial evidence that the product was to be used to manufacture meth").
The evidence supports a finding that Hicks was in possession of a pair of rubber gloves that bore a strong odor recognizable to trained law enforcement personnel as anhydrous ammonia. While such evidence could provoke speculation that Hicks or one of his confederates might have had dominion over a substantial quantity of anhydrous ammonia which could have been used to manufacture methamphetamine, it is in our view insufficient as a matter of law to support a conviction on the offense of possession of anhydrous ammonia with intent to manufacture a controlled substance. State v. Speicher, 625 N.W.2d 738, 741 (Iowa 2001). Because the State failed to adduce proof that Hicks possessed a quantity of anhydrous ammonia sufficient to support a finding that he intended it to be used for the manufacture of methamphetamine, we conclude the State has failed to prove the "intent to manufacture" element as a matter of law.
We would assume without deciding that Hicks was in possession of some amount of anhydrous ammonia as the strong odor of that substance suggests some trace amount of the substance was still present on the gloves at the time the gloves were seized. However, the crime at issue here is not one of simple possession where the mere presence of contraband found in one's possession is sufficient to violate the statute. Here it was the State's burden to prove Hicks possessed anhydrous ammonia with the intent that the amount possessed be used to manufacture a controlled substance. We conclude that where, as here, the evidence fails to establish possession of some measurable quantity of the precursor, it is insufficient as a matter of law to support a conviction. The jury was left to speculate whether the mere odor of anhydrous ammonia emanating from the rubber gloves evidenced possession of a quantity of the precursor sufficient to support an inference that Hicks or someone else intended to manufacture methamphetamine. Such evidence only gives rise to a suspicion and is insufficient to support guilt. Truesdell, 679 N.W.2d at 619.
Despite our conclusion with regard to the insufficiency of the evidence to support Hicks's conviction of possession of anhydrous ammonia with intent to manufacture, we affirm Hicks's ethyl ether conviction precisely because sufficient quantities of the starter fluid containing the ethyl ether were found in Hicks's possession to support a rational inference that Hicks intended the starter fluid would be used in the future manufacture of methamphetamine. In the absence of proof that sufficient quantities of anhydrous ammonia could be extracted from the gloves seized from the trunk, no similar inference with regard to the intent element for that precursor may be drawn.
V. Conclusions and Disposition.
We conclude Hicks's conviction for conspiracy to manufacture methamphetamine and his conviction for possession of ethyl ether with the intent to manufacture a controlled substance are supported by substantial evidence and affirm those convictions. We further conclude the evidence is insufficient to prove that Hicks possessed anhydrous ammonia with the intent to manufacture a controlled substance. We therefore reverse the conviction on this latter charge and remand to the district court for dismissal of that charge.