Opinion
No. 2-558 / 02-0028.
Filed April 30, 2003.
Appeal from the Iowa District Court for Marion County, GARY G. KIMES, Judge.
Mark Maeschen appeals his convictions for conspiracy to manufacture methamphetamine and conspiracy to possess a precursor to methamphetamine. AFFIRMED.
Alfredo Parrish of Parrish, Kruidenier, Moss, Dunn, Boles Gribble, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Terry Rachels, County Attorney, and Ryan Ellis, Assistant County Attorney, for appellee.
Heard by HUITINK, P.J., and MAHAN and VAITHESWARAN, JJ.
Mark Maeschen appeals his convictions for conspiracy to manufacture methamphetamine, in violation of Iowa Code section 124.401(1)(b)(7) (2001), and conspiracy to possess a precursor with the intent to manufacture methamphetamine, in violation of section 124.401(4). Maeschen claims: (1) he is entitled to a new trial because the State suppressed exculpatory evidence and the guilty verdicts were contrary to the weight of the evidence; (2) the evidence was not sufficient to support his convictions; (3) he was denied effective assistance of counsel; (4) the trial court erroneously excluded relevant evidence; and (5) he was illegally sentenced. We affirm.
Maeschen was also convicted of possession of methamphetamine, in violation of § 124.401(5). He does not appeal this his conviction for this offense.
I. Background Facts Proceedings
Shortly after midnight on July 21, 2001, a deputy sheriff observed a vehicle driving near an anhydrous ammonia plant in Marion County. The deputy then noticed a shining flashlight and someone moving around the anhydrous tanks as well as a vehicle moving through the tanks without its lights on. The officers found Maeschen standing by his pickup, which was parked near the anhydrous plant. Officers also found two empty tanks with modified valves, a channel locks pliers, a rubber hose, a flashlight, methamphetamine, and other drug paraphernalia in Maeschen's pickup.
Officers subsequently encountered Troy McPhee in a vehicle on Maeschen's farm. The vehicle contained Coleman fuel and lithium batteries inside a glass jar, more lithium batteries, mixing bowls, and ephedrine. Officers found an air tank with a modified valve containing anhydrous residue in Maeschen's machine shed.
Maeschen admitted that he was addicted to methamphetamine. He stated that on July 20, 2001, he met McPhee, who provided Maeschen with a tank and offered to pay him $100 per gallon for anhydrous. Maeschen was aware the anhydrous would be used to manufacture methamphetamine. He modified the tank in order to accommodate anhydrous. Maeschen, however, claimed that after arriving at the anhydrous plant, he changed his mind and was leaving the plant when he was discovered by the deputy sheriff.
A jury found Maeschen guilty of conspiracy to manufacture methamphetamine (Count I), possession of methamphetamine (Count II), and conspiracy to possess a precursor with the intent to manufacture methamphetamine (Count III). Maeschen's motions in arrest of judgment and for new trial were denied. He was sentenced to a term of imprisonment not to exceed twenty-five years on Count I, one year in jail on Count II, and a term of imprisonment not to exceed five years on Count III, all to be served concurrently. Maeschen appeals only his convictions on Counts I and III.
II. New Trial
A. Maeschen contends the district court erred by failing to grant his motion for a new trial on the ground that the State suppressed evidence favorable to him. He argues that although the State originally intended to call McPhee as a witness, McPhee was not called to testify because he changed his testimony. In support of his motion for new trial, Maeschen offered a letter from attorney Ron Walker, who was present during closing arguments. In his letter Walker states that an assistant county attorney told him McPhee had changed his testimony. However, Walker's letter contained no other details concerning McPhee's testimony.
Maeschen argues the State's failure to reveal the nature of McPhee's changed testimony violated the controlling rule established in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963). The Brady rule provides:
the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.Brady, 373 U.S. at 87, 83 S.Ct. 1196-97, 10 L.Ed.2d at 218. Evidence is material only if there is a reasonably probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. State v. Veal, 564 N.W.2d 797, 810 (Iowa 1997). A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Mark v. State, 568 N.W.2d 820, 823 (Iowa Ct.App. 1997). We review an alleged Brady violation de novo. State v. Tangie, 616 N.W.2d 564, 571 (Iowa 2000).
We determine Maeschen has failed to show the State suppressed evidence favorable to him. Maeschen surmises McPhee's changed testimony would be favorable but offers no details concerning the substance of McPhee's changed testimony. We find Maeschen's bald assertion insufficient to support the required finding that McPhee's testimony would have been favorable to his defense. We accordingly find no Brady violation and affirm on this issue.
B. Maeschen also contends he was entitled to a new trial because the guilty verdicts were contrary to the weight of the evidence. He claims the district court failed to apply the proper legal standard in resolving his motion for new trial. See State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998). We remanded the case to allow the district court to consider the motion in light of Ellis. On remand, the court concluded the verdict was not contrary to the weight of the evidence.
A motion for new trial is addressed to the discretion of the court. State v. Adney, 639 N.W.2d 246, 253 (Iowa Ct.App. 2001). A district court ruling on a motion for new trial will be reversed only for a demonstrated abuse of discretion. State v. O'Shea, 634 N.W.2d 150, 154 (Iowa Ct.App. 2001). A new trial should be granted if the district court determines the verdict is contrary to the weight of the evidence. Ellis, 578 N.W.2d at 658-59. A verdict is contrary to the weight of the evidence where a greater amount of credible evidence supports one side of an issue or cause than the other. Id. at 659.
We find that the verdicts in this case were not contrary to the weight of the evidence. Maeschen admitted he was approached by McPhee and offered $100 per gallon for anhydrous. Maeschen also admitted he knew the anhydrous would be used to manufacture methamphetamine. Maeschen modified a tank so it could hold anhydrous, then went to an anhydrous plant at midnight with all the equipment necessary to obtain anhydrous. There is also evidence that McPhee was waiting at Maeschen's farm with other ingredients used to manufacture methamphetamine. From these facts a jury could well infer that Maeschen had an agreement with McPhee that he would provide anhydrous, and that this anhydrous would be used to manufacture methamphetamine. We determine the district court did not abuse its discretion in finding this evidence outweighed Maeschen's claim he was planning on leaving the anhydrous plant without taking any anhydrous.
III. Sufficiency of the Evidence
Maeschen asserts the State did not present sufficient evidence to show he entered into an agreement with McPhee to manufacture methamphetamine or to possess anhydrous with the intent to manufacture methamphetamine.
We review sufficiency of the evidence claims for errors at law. Iowa R.App.P. 6.4. A jury's verdict is binding if it is supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Substantial evidence is such evidence as could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct.App. 1999). Direct and circumstantial evidence are equally probative. Iowa R.App.P. 6.14(6)( p).
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); State v. Nickens, 644 N.W.2d 38, 42 (Iowa Ct.App. 2002). Such an agreement may be established by direct or circumstantial evidence. State v. Speicher, 625 N.W.2d 738, 742 (Iowa 2001). "Circumstantial evidence includes the declarations and conduct of the alleged conspirators and all reasonable inferences arising from such evidence." Id. A tacit understanding is sufficient to sustain a conspiracy conviction, that is an understanding inherent in and inferred from the circumstances. Id. Maeshen claims the State's evidence is not sufficient to show the requisite agreement with McPhee.
For the same reasons outlined above in our discussion concerning the weight of the evidence, we find there is substantial evidence in the record to support Maeschen's convictions. The circumstantial evidence that Maeschen was at an anhydrous plant, with tools to steal anhydrous, at the same time McPhee waited at his farm with other ingredients to manufacture methamphetamine is sufficient to establish the requisite agreement to possess anydrous with intent to manufacture and an agreement to manufacture methamphetamine.
IV. Ineffective Assistance of Counsel
Our review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective assistance of counsel, a defendant must show (1) the attorney failed to perform an essential duty, and (2) prejudice resulted to the extent it denied defendant a fair trial. State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998).
Maeschen makes several allegations that he received ineffective assistance of counsel. He claims: (1) his trial counsel failed to make a sufficiently specific motion for judgment of acquittal; (2) his trial counsel did not adequately prepare for trial; (3) he received ineffective assistance because trial counsel did not seek a statement from the prosecutor concerning whether McPhee changed his testimony or seek a statement from McPhee; (4) his trial counsel should have requested to have opening statements, closing arguments, and voir dire reported; (5) his trial counsel was ineffective for failing to adequately explore a plea offer; (6) his trial counsel did not adequately cross-examine the State's witnesses because he did not file a motion for production of statements or other documents which might have been used for impeachment; (7) his trial counsel should not have called him to testify; and (8) his trial counsel should have filed a pre-trial motion to suppress inculpatory statements he made to deputy sheriffs at the time of his arrest on the grounds of promissory leniency or voluntariness.
Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to afford a more full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 835 (Iowa 1997). However, we will resolve ineffective assistance claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). We find there is not sufficient evidence in the record before us to address Maeschen's claims of ineffective assistance of counsel, and we determine these issues should be preserved for possible postconviction proceedings.
V. Character Evidence
During the trial, Maeschen sought to introduce testimony from his mother concerning the "way he deliberates and thinks before he enters into an agreement." The district court determined the evidence was irrelevant. Maeschen claims the district court abused its discretion in excluding this evidence.
We review a district court's rulings concerning the admissibility of evidence for an abuse of discretion. State v. Axiotis, 569 N.W.2d 813, 815 (Iowa 1997). An abuse of discretion is found when the trial court exercises its discretion on grounds clearly untenable or to an extent clearly unreasonable. State v. Sinclair, 582 N.W.2d 762, 764 (Iowa 1998).
We determine Maeschen was not prejudiced by the court's decision because Bill Wallace, who worked on his farm, testified Maeschen was "kind of slow or meticulous as far as it takes him awhile to make up his mind what he wants to do or if he wants to do something," and "[h]e is not quick to make any decisions." Furthermore, Maeschen testified to his thoughts on the day in question. He asserted that even after he went to the anhydrous plant he had not made up his mind to steal anhydrous. See State v. Windsor, 316 N.W.2d 684, 688 (Iowa 1982) (noting the presumption of prejudice may be overcome by showing the same evidence came into the record at another time).
VI. Sentence
Maeschen claims his sentence for conspiracy to manufacture methamphetamine should merge with his sentence for conspiracy to possess a precursor with intent to manufacture methamphetamine because it was impossible to commit the first crime without also committing the second.
The legislature intends to authorize separate punishments for two offenses when each offense requires proof of an additional fact the other does not. State v. Perez, 563 N.W.2d 625, 628 (Iowa 1997). A conviction for conspiracy for possess of anhydrous with intent to manufacture methamphetamine requires proof of conspiracy to possess anhydrous. See Iowa Code § 124.401(4). A manufacturing offense does not have a possession element because it is conceivable a defendant might be part of the manufacture of a controlled substance by financing the manufacture without being in actual possession of the controlled substance. State v. Spivie, 581 N.W.2d 205, 209 (Iowa Ct.App. 1998). We determine Maeschen was not entitled to have his sentences merged under section 701.9.
We affirm Maeschen's convictions. We preserve Maeschen's claims of ineffective assistance of counsel for possible postconviction proceedings.