Opinion
No. 4-204 / 03-0958
May 14, 2004.
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
Jennifer Midgorden appeals from her convictions for manufacturing a controlled substance and possession of pseudoephedrine as a precursor. AFFIRMED IN PART; REVERSED IN PART.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, John Sarcone, County Attorney, and Stephanie Cox, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Jennifer Midgorden appeals from her convictions for manufacturing a controlled substance and possession of pseudoephedrine as a precursor. We reverse her conviction for manufacturing a controlled substance, affirm her conviction for possession of pseudoephedrine as a precursor, and preserve for possible postconviction relief proceedings one of her claims of ineffective assistance of counsel.
BACKGROUND FACTS AND PROCEEDINGS.
Pursuant to a warrant, police searched the home of Deanna Goodrich on the evening of September 25, 2002. They found Goodrich asleep in an upstairs bedroom and her boyfriend, Ivan Cox, in the garage. Also in the garage, police discovered a paper bindle, a jar, and piece of aluminum foil containing methamphetamine or methamphetamine residue. They also uncovered other items consistent with methamphetamine manufacture, including a "drug note," a roll of aluminum foil, batteries, a cooler, crushed pseudophedrine pills, coffee filters, rubber gloves, Mason jars, starter fluid, and an air-purifying mask.
Inside the house, police found a mattress and women's clothing scattered throughout a downstairs bedroom. Although no one was in the bedroom at the time of the search, police found a document with Jennifer Midgorden's name on it. On a table in the room was a brass scale and a receipt for the cash purchase of coffee filters and pseudoephedrine pills. A zipped canvas bag found on the floor contained a large number of blister packs of Sudafed, an unused coffee filter, and a police scanner. In the closet, police discovered a cooler and a propane torch.
When police spoke with Goodrich, she explained that the downstairs bedroom belonged to Jennifer Midgorden. Midgorden was subsequently charged with manufacturing a controlled substance, possession of pseudoephedrine as a precursor, possession of anhydrous ammonia as a precursor, and possession of lithium as a precursor. After a trial, Midgorden was found guilty of manufacturing a controlled substance and possession of pseudoephedrine as a precursor. She appeals, contending the evidence was insufficient to support the verdicts and her counsel was ineffective.
STANDARD OF REVIEW.
We review for errors at law a challenge to the sufficiency of the evidence supporting a verdict. State v. Speicher, 625 N.W.2d 738, 740 (Iowa 2001). We will uphold a verdict if it is supported by substantial evidence. Id. Evidence is substantial if it would convince a rational trier of fact that the defendant is guilty of the crime charged beyond a reasonable doubt. Id. at 740-41. We view the evidence in the light most favorable to the State, making any legitimate inferences and presumptions that may be fairly and reasonably deduced from the record. State v. Bass, 349 N.W.2d 498, 500 (Iowa 1984).
A claim of ineffective assistance of counsel, because it is a constitutional claim, will be reviewed de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). We prefer to preserve ineffective assistance of counsel claims for possible postconviction relief proceedings. State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999). We will, however, resolve the claim on direct appeal if the record adequately presents the issues. Id. SUFFICIENCY OF THE EVIDENCE. Manufacturing Conviction.
The burden is on the State to prove every fact necessary to constitute the crime with which the defendant is charged. State v. Gibbs, 239 N.W.2d 866, 867 (Iowa 1976). The evidence must raise a fair inference of guilt and do more than create speculation, suspicion or conjecture. State v. Hamilton, 309 N.W.2d 471, 479 (Iowa 1981). In this case, Midgorden was charged with manufacturing methamphetamine, and the jury was instructed that they could find Midgorden guilty if they determined she aided and abetted the manufacture of methamphetamine. Midgorden contends the evidence linking her to the actual manufacture of methamphetamine is insufficient to support a conviction.
Our review of the evidence leads us to conclude sufficient evidence does not support Midgorden's conviction for manufacturing a controlled substance. Many items used in the manufacture of methamphetamine were found in the bedroom occupied by Midgorden, including pseudoephedrine tablets, a propane torch, a cooler, and a scale. However, no methamphetamine or methamphetamine by-products were found in the bedroom. Accordingly, Midgorden's conviction cannot stand on only the evidence found in the bedroom, but rather Midgorden must be connected to the manufacturing operation discovered in the garage where methamphetamine residue and by-products were found. We conclude the evidence presented at trial creates only speculation, suspicion, or conjecture that Midgorden was involved in the manufacturing operation in the garage. The only evidence linking Midgorden to the garage was Goodrich's testimony that Midgorden stored some personal belongings in the garage, such as chairs and a washer. In fact, Goodrich testified she had never actually seen Midgorden in the garage. Midgorden was not in the garage when the police arrived, and no fingerprints or other evidence connected the contraband in the garage with Midgorden. Given that four other people lived in the house and had access to the garage, one of whom, Ivan Cox, was present in the garage when police searched the property, we conclude the evidence is insufficient to support a verdict that Midgorden manufactured methamphetamine, either as a principal or as an aider and abettor. Accordingly, we conclude the district court erred by failing to grant Midgorden's motion for acquittal on the manufacturing charge. We reverse her conviction and remand for re-sentencing.
Possession of a Precursor.
Midgorden also contends the evidence is insufficient to support her conviction for possession of pseudoephedrine as a precursor. She specifically argues the evidence connecting her to the bedroom in which the pseudoephedrine was found was insufficient to support the conclusion that the pseudoephedrine, or any of the other potentially incriminating items, belonged to her. Midgorden relies on the supreme court's decision in State v. Webb, 648 N.W.2d 72, 79 (Iowa 2002) which concluded that direct evidence must connect a defendant to contraband which is found in a place jointly accessible by the defendant. Midgorden argues that because she was not on the premises or in the room when the contraband was found, the State must connect her to the contraband with other evidence, such as incriminating statements or actions or fingerprints on the contraband
While we agree with Midgorden's analysis of Webb, we do not agree that the facts of her case are analogous to the facts in Webb. Unlike Webb, the contraband in this case was not found in a location jointly accessible by Midgorden. Rather, the testimony indicated that Midgorden was the sole occupant of the bedroom in which the pseudoephedrine was found. Aside from some winter coats and boxes of Christmas decorations stored in the closet, Goodrich testified none of the items in the bedroom belonged to her. Goodrich testified Midgorden was renting the room from her and that although she occasionally dropped off laundry, she "had no reason" to go into the room because it was Midgorden's. The room had two entrances, but one door was blocked off to afford Midgorden privacy. The contraband was found in Midgorden's bedroom where a document bearing her name was also found. Although Midgorden was not in the room when the contraband was discovered, and although there was no testimony indicating when she had last been in the room, we conclude the evidence is sufficient to support a finding by the jury that Midgorden constructively possessed the pseudoephedrine because it was found in a location that was "immediately and exclusively accessible" to Midgorden and "subject to [her] dominion and control." Id. Given that a large quantity of pseudoephedrine and other items commonly associated with the manufacture of methamphetamine, such as a torch, cooler, scale, police scanner, and a receipt for coffee filters, were found in her room, we conclude the evidence was sufficient to support a jury finding that Midgorden possessed the pseudophedrine with the intent to manufacture methamphetamine. Accordingly, we affirm her conviction for possession of a precursor.
INEFFECTIVE ASSISTANCE OF COUNSEL.
Juror Bias.
To succeed on an ineffective assistance of counsel claim, Midgorden must prove that her counsel breached an essential duty and that she was prejudiced. Westeen, 591 N.W.2d at 207. Midgorden contends that her trial counsel was ineffective for failing to move for a mistrial after a juror acknowledged that he was familiar with one of the police officers testifying at trial. She claims that had her counsel moved for a mistrial, it would likely have been granted.
Shortly after Officer Townes took the stand, one of the jurors interrupted his testimony and said,
I just wanted to let you guys know right out of the gate, I do know Brian. I don't know him personally, but where I've worked he's come in and stuff. So I just wanted to let everybody know before we proceed too much further. I didn't know the name, but the face with it.
An off-the-record discussion took place between the court and counsel. At the conclusion of the discussion, the court informed the juror that he would be allowed to remain on the jury, and the trial continued. Our de novo review of the record indicates a motion for mistrial would not have been granted had Midgorden's counsel made it. The juror did not vouch for the officer's "credibility and all around good character" as Midgorden asserts. Rather he acknowledged having seen the officer before, but didn't even know him well enough to recognize the officer's name. We conclude there is no indication of juror bias and Midgorden's trial counsel was not ineffective in this respect.
Violation of Motion in Limine.
Midgorden's trial counsel filed a motion in limine requesting that no testimony be given that a photograph from the camera found in Midgorden's room depicted Midgorden smoking a marijuana-stuffed cigar, or blunt. This motion was granted. However, at trial, when Officer Townes was questioned about the photograph, he stated, "It depicts Ms. Midgorden smoking a blunt." Midgorden's trial counsel objected, and the court sustained the objection and struck the answer. Midgorden contends her trial counsel was ineffective for failing to move for a mistrial following Officer Townes' comment. She claims this reference to her use of marijuana was highly prejudicial despite the court's admonition to the jury to disregard Officer Townes' answer. During deliberations, the jury sent a note to the court specifically requesting to see that photo, and Midgorden argues this demonstrates the prejudicial effect of Townes' statement.
We conclude that the record is insufficient to resolve this claim in this direct appeal. Therefore, we preserve this issue for possible post-conviction relief proceedings.