Opinion
No. 4-303 / 03-0784.
June 9, 2004.
Appeal from the Iowa District Court for Cedar County, Mark D. Cleve, Judge.
Vincent Pore appeals from his conviction, following a trial to the court, for possession of cocaine in violation of Iowa Code section 124.401(5) (2001). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, Lee Beine, County Attorney, and Jeffrey Renander, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
Vincent Pore appeals from his conviction, following a trial to the court, for possession of cocaine in violation of Iowa Code section 124.401(5) (2001). He contends the court erred in finding the evidence sufficient to prove he had committed that offense. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
The following facts are set forth in the record. On the evening of September 25, 2002 Pore was driving in his car on Highway 927 when off-duty Muscatine County Sheriff's Deputy Michael Bailey observed Pore's car swerve over the center line three to five times. Deputy Bailey suspected Pore was driving while intoxicated and used his cell phone to report Pore's erratic driving. He then followed Pore until State Trooper Robert Turpin arrived to follow Pore and investigate. Shortly after Turpin began to follow Pore, Pore pulled into a convenience store and stopped. Turpin approached the vehicle on the driver's side and began to speak with Pore.
Pore told Trooper Turpin he was going to his friend "Mike's" house to pick up a pack of cigarettes he had left in Mike's vehicle. The trooper asked if Pore had any weapons on him and Pore stated he had a pocket knife. Turpin then asked Pore to exit the vehicle and to leave the knife in the car. As Pore was getting out of the car Turpin asked for, and received, permission from Pore to search him for any additional weapons. However, before Pore got out of the car, Turpin observed him "fishing into his right pocket" and moving his hand in and out of the pocket as though attempting to empty something from the pocket.
After Pore was out of the car the trooper asked again for consent to search him and Pore consented. During the pat down search of Pore, Turpin found a metal socket in Pore's left pants pocket. It was a deep-well 7/32 socket, it was clogged in the center, it smelled of marijuana, and had ashes and burn marks on it. Trooper Turpin testified at trial that based on his experience he knew such sockets are sometimes used to consume controlled substances. He found no other tools on Pore.
After Turpin found the socket he performed three field sobriety tests on Pore to determine if he was intoxicated. Turpin testified that Pore passed the field sobriety tests. After the tests Turpin issued Pore a citation for possession of drug paraphernalia and gave him a warning for proof of insurance. He then gave Pore his driver's license back, and said he would like Pore to look at a form for consent to search his vehicle before he left. Pore apparently read the consent form and signed it, giving Turpin consent to search his vehicle. The trooper then searched Pore's car and found a plastic baggie of marijuana and a packet of rolling papers hidden in the upholstery in the front passenger seat. Turpin testified that these items were within easy reach of someone in the driver's seat. He also testified that a videotape was made of the stop and the search of Pore. When the marijuana was discovered Pore, alone in Trooper Turpin's car, made a statement to the effect, "I would have smoked it." His statement was picked up by the video camera in the trooper's car.
The State charged Pore by trial information with possession of marijuana, in violation of Iowa Code section 124.401(5). The metal socket and the plastic baggie were submitted to the DCI Criminalistics Laboratory for testing. The results received by the State confirmed both the plant material in the baggie and the residue taken from the socket were marijuana. The testing also showed there was powder cocaine residue on the metal socket. The State then sought to amend the trial information to include a charge of possession of cocaine in violation of Iowa Code section 124.401(5). The court authorized the amendment to the trial information.
Pore waived his right to jury trial and a bench trial was held. Pore did not testify at trial. His girlfriend, Rachelle Gustafson, who was in the vehicle at the time Pore was stopped, did testify on Pore's behalf. She testified that earlier on the day in question Pore and his friend Mike had been at their home working on Pore's car. She stated she had seen them using sockets to work on the car. Gustafson also supported Pore's statement to Turpin that they were on their way to Mike's house to pick up Pore's cigarettes when they were stopped. In addition, Gustafson denied she used marijuana or cocaine, denied that the drugs found in the car were hers, and denied that she put the socket into Pore's pocket.
The trial court found Pore guilty of possession of marijuana and possession of cocaine, in violation of Iowa Code section 124.401(5). Pore does not contest his conviction for possession of marijuana. The court sentenced Pore to serve jail terms of forty-eight hours on each count, with the sentences to be served consecutively. He appeals from the trial court's judgment, contending there is insufficient evidence to convict him of possession of cocaine. More specifically, Pore argues there is no evidence to establish he had the requisite knowledge of the presence or nature of the controlled substance in question.
In a companion case Pore was also found guilty of possession of drug paraphernalia. That conviction is also not at issue in this appeal.
II. SCOPE AND STANDARDS OF REVIEW.
We review challenges to sufficiency of the evidence supporting a guilty verdict for errors at law. Iowa R. App. P. 6.4; State v. Randle, 555 N.W.2d 666, 671 (Iowa 1996). "We review a trial court's findings in a jury-waived case as we would a jury verdict: If the verdict is supported by substantial evidence, we will affirm." State v. Weaver, 608 N.W.2d 797, 803 (Iowa 2000). A trial court's finding of guilt is binding on us if supported by substantial evidence. State v. Lambert, 612 N.W.2d 810, 813 (Iowa 2000). Substantial evidence is evidence which would convince a rational factfinder that the defendant is guilty beyond a reasonable doubt. State v. Dible, 538 N.W.2d 267, 270 (Iowa 1997). "The evidence is examined in the light most favorable to the State, including all legitimate inferences and presumptions which may be fairly and reasonably deduced from the record. We consider all evidence presented, not just that of an inculpatory nature." Lambert, 612 N.W.2d at 813. Pore's claim is preserved for our review. See State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997) ("[W]hen a criminal case is tried to the court, a defendant may challenge the sufficiency of the evidence on appeal irrespective of whether a motion for judgment of acquittal was previously made.").
III. MERITS.
Possession of a controlled substance requires proof of three elements: (1) dominion and control of the substance, (2) knowledge of the presence of the substance, and (3) knowledge of the nature of the substance. State v. Rudd, 454 N.W.2d 570, 571 (Iowa 1990), overruled on other grounds by State v. Webb, 648 N.W.2d 72 (Iowa 2002); State v. Reeves, 209 N.W.2d 18, 21-22 (Iowa 1973). Pore concedes that he had dominion and control over the socket which contained the cocaine residue. Pore only challenges the sufficiency of the evidence on the second and third elements of possession. He argues there is insufficient evidence to prove he had knowledge of the presence of the cocaine either on the socket or within the marijuana residue, and insufficient evidence that he had knowledge the residue in the socket was anything other than marijuana.
The necessary elements of unlawful possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. Reeves, 209 N.W.2d at 21-22. Knowledge of the presence, and the nature, of the substance may be shown by the conduct, behavior, and declarations of the accused. Id. at 22. "The knowledge required for the second and third elements can be, and because of their subjective nature often must be, inferred." Rudd, 454 N.W.2d at 571. If the controlled substance is found in the exclusive control of the defendant (i.e. exclusively accessible to the defendant, and subject to his or her use) knowledge of its presence may be inferred. See Reeves, 209 N.W.2d at 22-23. Pore concedes the socket with the marijuana and cocaine residue was found on his person in his pocket and that he had dominion and control over the socket. Accordingly, we find the record contains substantial evidence that clearly shows Pore had actual possession, see State v. Bash, 670 N.W.2d 135, 138 (Iowa 2003), and exclusive control, see Reeves, 209 N.W.2d at 22-23, of the controlled substance.
"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." Reeves, 209 N.W.2d at 22. However, we can find nothing in the record to rebut the inference that Pore had knowledge of the presence of the cocaine. Gustafson testified that she did not use cocaine, denied any knowledge of the drugs, and denied that she had put the socket into Pore's pocket. In addition, although Gustafson testified that she saw both Pore and Mike using sockets to work on a car earlier in the day, there is no evidence that Mike had in fact used the socket found on Pore.
Therefore, we conclude that based on Pore's actual possession and exclusive control of the socket and the controlled substances found therein a reasonable factfinder could infer that Pore had knowledge of both the presence and the nature of the cocaine. Keeping in mind the principle that the credibility of witnesses and the weight of the evidence were primarily to be determined by the trial court as factfinder, State v. Ruiz, 496 N.W.2d 789, 792 (Iowa Ct.App. 1992), we find there is substantial evidence in the record to support the trial court's finding of guilt.
We note the State's argument that under the plain language of section 124.401(5) it was not required to prove that Pore knew of the exact type of illegal controlled substance he possessed, only that he possessed some illegal controlled substance, because the statute does not include a requirement that the State prove the defendant knew he or she possessed a specific controlled substance. Thus, the State asserts that in order to convict Pore of possession of cocaine, it was sufficient to prove he was aware he possessed some illegal drug, whether or not he was aware of exactly which drug or drugs he possessed. However, based on our determination that there was sufficient evidence for a rational factfinder to infer Pore had knowledge of both the presence and the nature of the cocaine in his actual possession, we need not determine whether the State's interpretation of section 124.401(5) is correct.
IV. CONCLUSION.
Upon considering all evidence presented, and viewing that evidence in the light most favorable to the State, we conclude there is sufficient evidence in the record for a rational factfinder to infer Pore had the requisite knowledge of both the presence and the nature of the cocaine and to find, beyond a reasonable doubt, that Pore was guilty of possession of cocaine.