From Casetext: Smarter Legal Research

State v. Reed

Court of Appeals of Iowa
Dec 11, 2002
No. 2-804 / 01-1816 (Iowa Ct. App. Dec. 11, 2002)

Opinion

No. 2-804 / 01-1816.

Filed December 11, 2002.

Appeal from the Iowa District Court for Black Hawk County, BRUCE ZAGER, Judge.

Defendant appeals from the judgment and sentence entered following his convictions for possession of cocaine base with intent to deliver, possession of marijuana with intent to deliver, and failure to affix a drug tax stamp. AFFIRMED.

Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and D. Raymond Walton, Assistant County Attorney, for appellee.

Considered by VOGEL, P.J., and ZIMMER and HECHT, JJ.


Defendant Dwight Reed appeals from the judgment and sentence entered following his convictions for possession of cocaine base with intent to deliver in violation of Iowa Code section 124.401(1)(c) (1999), failure to affix a drug tax stamp in violation of section 453B.12, and possession of marijuana with intent to deliver in violation of section 124.401(1)(d). Reed claims there was insufficient evidence to support his convictions. He also claims the district court erred in admitting evidence of a prior drug conviction. We affirm.

I. Background Facts and Proceedings.

A jury could have found the following facts. On September 6, 2000 at approximately 1:30 p.m., Waterloo Police Officer Randall Hammitt went to the Old Timers tavern to execute an arrest warrant on Reed. When Hammitt entered the bar he observed Reed playing a video game. As the officer approached Reed, he noticed a bag of chips on the floor in close proximity to Reed but thought nothing of it. Hammitt asked Reed to step outside.

As Hammitt was arresting Reed just outside the tavern, Reed began to display suspicious behavior. Reed began yelling for Frenchie Campbell, an employee of the tavern, and sweat began to roll from his forehead. As Reed yelled for Campbell, he nodded to his left — the direction of the video machine where he had been sitting. Hammitt became suspicious and requested fellow officer Mark Shoars to maintain custody of Reed. Hammitt reentered the tavern and walked back to where Reed had been sitting. He picked up the potato chip bag, looked inside, and discovered marijuana individually packaged in separate small plastic baggies that were tied shut. He later discovered ten individually wrapped rocks of crack cocaine in the potato chip bag below the marijuana.

On September 19, 2000, the State charged Reed with possession with intent to deliver cocaine base, possession with intent to deliver marijuana, and a drug tax stamp violation. On March 20, 2001, Reed filed a motion in limine seeking to exclude evidence of a prior drug conviction. The court denied his request. Trial commenced that same day and the jury returned verdicts of guilty on all three charges. Following the guilty verdicts, Reed stipulated to being a second and habitual offender and received a sentence of thirty years, with a mandatory minimum of ten years. Reed appeals.

II. Prior Drug Conviction.

A. Scope of Review. Reed argues that the district court erred in admitting evidence of his 1990 conviction for possession of crack cocaine with intent to deliver. We review a district court's evidentiary rulings for abuse of discretion. State v. Castaneda, 621 N.W.2d 435, 440 (Iowa 2001). We will reverse an evidentiary ruling only upon a showing that the court exercised its discretion on grounds clearly untenable or unreasonable. State v. Axiotis, 569 N.W.2d 813, 815 (Iowa 1997). Without addressing the State's contention that Reed failed to preserve error on this issue, we affirm the court's ruling.

B. Applicable Law. Pursuant to Iowa Rule of Evidence 5.404(b) (formerly Iowa Rule of Evidence 404(b)), evidence of other crimes is generally inadmissible for the purpose of showing a person acted in conformity therewith. Iowa Rule of Evidence 5.404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Under rule 5.404(b), the key is "whether the challenged evidence is relevant and material to some legitimate issue other than a general propensity to commit wrongful acts." State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988). If the evidence meets this test, it is prima facie admissible, even though it has a tendency to demonstrate the defendant's bad character. Castaneda, 621 N.W.2d at 440.

In determining whether the challenged evidence is admissible, the court must then apply a two-prong analysis. Id. The court must determine (1) whether the evidence is relevant, and if so, (2) whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Id.

C. Analysis. The district court found the 1990 conviction for possession of crack cocaine with intent to deliver relevant to Reed's motive, opportunity, intent, preparation, plan, knowledge, identity of person charged, or absence of mistake or accident. The court also found the prior conviction's probative value was not outweighed by unfair prejudice. Reed maintains that the 1990 conviction is irrelevant and unfairly prejudicial. The State argues the prior conviction is relevant to Reed's knowledge and intent; it also asserts the probative value of the conviction is not substantially outweighed by unfair prejudice. We agree with the State.

Relevant evidence is that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Iowa R. Evid. 5.401. In several drug prosecution cases, our supreme court has held that prior crimes are relevant to the issues of knowledge, intent, and absence of mistake. State v. Wade, 467 N.W.2d 283, 284-85 (Iowa 1991) (prior arrest for possession with intent to deliver admissible to show intent, knowledge, absence of mistake or accident); State v. Grosvenor, 402 N.W.2d 402, 405-06 (Iowa 1987) (prior acts of delivery of drugs admissible to show intent); State v. Kern, 392 N.W.2d 134, 136-37 (Iowa 1986) (prior delivery of controlled substance admitted to show intent); State v. Mendiola, 360 N.W.2d 780, 782 (Iowa 1985) (prior conviction of possession with intent to deliver admissible to show knowledge in prosecution for same offense).

We find Reed's 1990 conviction relevant and material to the elements of knowledge and intent. The evidence was relevant to prove his knowledge of the nature of the contraband found in Reed's possession and to prove his intent in possessing the drugs. The prior conviction makes the existence of his knowledge and intent to deliver more probable than it would be without the evidence. See Iowa R. Evid. 5.401.

Reed argues alternatively that the probative value of his prior drug conviction is substantially outweighed by unfair prejudice. In balancing the probative value versus the prejudicial effect, the court examines the need for the evidence in light of the issues and other evidence available, the convincingness of the evidence that the other crime was committed, the strength or weakness of the other-crimes evidence in supporting the issue, and the degree to which the jury will probably be roused by the evidence to overmastering hostility. Wade, 467 N.W.2d at 284-85.

After assessing these factors we conclude the prior conviction was properly admitted. The State had a legitimate need for the evidence to prove intent and knowledge. There was little evidence to show intent other than the potato chip bag containing the individually wrapped drugs. In addition, the evidence of the prior crime was strong. Reed was convicted of possession of crack cocaine with intent to deliver. This evidence supports Reed's knowledge and intent in the present case. Obviously, the prior conviction was prejudicial to Reed's case but not to an extent that would rouse a jury to overmastering hostility. See id. In addition, the district court gave the jury a limiting instruction regarding the 1990 conviction. We cannot assume the jury failed to follow the court's instruction. Plaster, 424 N.W.2d at 232.

Reed also contends that the time lapse of approximately twelve years between the two crimes diminishes the probative value and tips the scale towards unfair prejudice. We disagree. A lapse of time of this length does not negate all rational or logical connections to the crime in issue. See State v. Anderson, 565 N.W.2d 340, 342-43 (Iowa 1997) (holding two prior bad acts occurring twelve and eleven years prior relevant and admissible); State v. Casady, 491 N.W.2d 782, 785-86 (Iowa 1992) (holding two prior bad acts occurring twelve and fifteen years prior relevant and admissible).

We conclude that the prejudicial nature of the prior offense did not substantially outweigh the probative value of the evidence. Reed has failed to show that the trial court abused its discretion in admitting this evidence.

III. Sufficiency of Evidence.

Reed argues the evidence was insufficient to convict him of the crimes charged. He claims the State failed to prove beyond a reasonable doubt that he was in possession of the potato chip bag containing the contraband.

A. Scope of Review. We review challenges to the sufficiency of the evidence supporting a guilty verdict for correction of legal error. State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001); State v. Mitchell, 568 N.W.2d 493, 502 (Iowa 1997). We will uphold a verdict if substantial record evidence supports it. Mitchell, 568 N.W.2d at 502. Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id. We view the evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the evidence in the record. Id. We consider all of the evidence in the record — not just the evidence that supports the verdict. Id.

B. Analysis. Possession is an element of possession with intent to deliver and failure to affix a drug tax stamp. Iowa Code §§ 124.401(1)(c), 453B.12, 124.401(1)(d). Reed contends the State failed to establish the possession element.

We recognize two types of possession — actual and constructive. See State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002) (citing State v. Reeves, 209 N.W.2d 18, 22 (Iowa 1973)). To establish possession, the State must prove "dominion and control." Reeves, 209 N.W.2d at 22. Dominion and control can be established vis-vis constructive possession by showing that the accused "maintains control or a right to control" the contraband. Id. In Reeves, our supreme court established the following tenets of constructive possession,

In Webb, 648 N.W.2d at 79, our supreme court affirmed its holding in State v. McDowell, 622 N.W.2d 305, 309 (Iowa 2001), which overruled State v. Simpson, 528 N.W.2d 627, 632 (Iowa 1995), and reinstated the tenets of constructive possession as set forth in Reeves, 209 N.W.2d at 22-23.

Proof of opportunity of access to a place where [contraband is] found will not, without more, support a finding of unlawful possession.

. . . .

Possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another.

. . . .

If the premises on which [the contraband is] found [is] in the exclusive possession of the accused, knowledge of [its] presence on such premises coupled with his ability to maintain control over such [contraband] may be inferred. 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. But where the accused has not been in excusive possession of the premises but only in joint possession, knowledge of the presence of the [contraband] on the premises and the ability to maintain control over [the contraband] by the accused will not be inferred but must be established by proof. Such proof may consist either of evidence establishing actual knowledge by the accused, or evidence of incriminating statements or circumstances from which a jury might lawfully infer knowledge by the accused of the presence of the [contraband] on the premises.

Webb, 648 N.W.2d at 77 (emphasis in original) (quoting Reeves, 209 N.W.2d at 22-23). A defendant's close proximity to contraband, without more, is insufficient to constitute dominion and control. State v. Atkinson, 620 N.W.2d 1, 4 (Iowa 2000). Suspicious behavior may provide a jury circumstances from which a jury might lawfully infer knowledge by the accused. See Webb, 648 N.W.2d at 80 (citing Gaynus v. State, 380 So.2d 1174, 1175 (Fla.Dist.Ct.App. 1980)). Furtive movements alone may not be sufficient evidence to prove guilt. See Atkinson, 620 N.W.2d at 4 (citing Hurtado v. State, 881 S.W.2d 738 (Tex.Crim.App. 1994)). The issue of constructive possession is a fact-sensitive inquiry. Webb, 648 N.W.2d at 79 (citing State v. Harris, 647 So.2d 337, 339 (La. 1994)).

This case is one of constructive possession. Actual possession requires substances to be found on the defendant's person and that was not the case here. See Atkinson, 620 N.W.2d at 3 (citing State v. Rudd, 454 N.W.2d 570, 571 (Iowa 1990)).

Reed maintains that there is a lack of evidence in the record to establish his constructive possession of the potato chip bag and the drugs therein. He claims the circumstances do not support his knowledge of and ability to maintain control over the potato chip bag. He claims the bar was a mess and any number of people could have been dealing drugs in this fashion. In sum, Reed claims his proximity to where the contraband was found coupled with his suspicious behavior is insufficient to constitute constructive possession. We conclude otherwise.

As mentioned, when reviewing a claim of insufficient evidence, we view the evidence in the light most favorable to the State. Mitchell, 568 N.W.2d at 502. This includes legitimate inferences and presumptions that may fairly and reasonably be deduced from the evidence in the record. Id.

After careful review of the record, we conclude sufficient evidence exists to find Reed in constructive possession of the contraband. Officer Hammitt first viewed the potato chip bag at Reed's feet where he was sitting, playing a video game. Reed maintains that the bar was a mess; however, Frenchie Campbell testified that he cleaned the bar, including the floor, prior to Reed's arrival. Perhaps most importantly, upon being arrested Reed began to behave suspiciously. See Webb, 648 N.W.2d at 80 (citing Gaynus, 380 So.2d at 1175). Reed began sweating and yelling for Frenchie. As he called for Frenchie, he motioned in the direction of the contraband. This behavior persuaded Officer Hammitt to reenter the bar where he located the contraband. We find these circumstances establish Reed's constructive possession of the contraband.

Therefore, we affirm Reed's convictions, judgment, and sentences.

AFFIRMED.


Summaries of

State v. Reed

Court of Appeals of Iowa
Dec 11, 2002
No. 2-804 / 01-1816 (Iowa Ct. App. Dec. 11, 2002)
Case details for

State v. Reed

Case Details

Full title:STATE OF IOWA, Plaintiff-Appellee, v. DWIGHT CHARLES REED…

Court:Court of Appeals of Iowa

Date published: Dec 11, 2002

Citations

No. 2-804 / 01-1816 (Iowa Ct. App. Dec. 11, 2002)