Opinion
No. 3-840 / 02-1933.
Filed December 24, 2003.
Appeal from the Iowa District Court for Polk County, Gregory A. Hulse (trial) and Arthur E. Gamble (motions), Judges.
Anthony Riser appeals his conviction for conspiracy to deliver a controlled substance. AFFIRMED.
Susan Stockdale of Terrill, Martens, Hulting Stockdale, Ames, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, John Sarcone, County Attorney, and Daniel Voogt, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
A jury found Anthony Riser guilty of conspiracy to deliver a controlled substance (crack cocaine) and possession of a controlled substance (marijuana). See Iowa Code §§ 124.401(1)(c)(3), (5) (2001). On appeal, Riser contends 1) the evidence was insufficient to support the jury's finding of guilt on the conspiracy charge and 2) the trial court abused its discretion in denying his motion to compel the production of the seized crack cocaine as well as his motion to continue the trial date. We affirm.
Riser stipulated to his status as a second and subsequent offender. Iowa Code § 124.411 (2001).
I. Sufficiency of the Evidence
The jury was instructed that the State would have to prove all the following elements of conspiracy to deliver a controlled substance:
1. On or about June 17, 2002, the defendant agreed with another,
A. That one or more of them would commit the crime of delivery of a controlled substance, or solicit another to deliver a controlled substance; or
B. Attempt to deliver a controlled substance.
2. The defendant entered into the agreement with the intent to promote or facilitate the delivery of a controlled substance.
3. One or both of the individuals committed an overt act.
4. The co-conspirator was not a law enforcement agent investigating the delivery of a controlled substance or assisting law enforcement agents in the investigation when the conspiracy began.
Riser argues that evidence presented at trial was insufficient to support a guilty verdict on the count of conspiracy to deliver a controlled substance. Viewing the evidence in the light most favorable to the State, we must decide whether the record contains substantial evidence of these elements. See State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000).
A jury reasonably could have found that two Des Moines police officers, in search of a man with a gun, discovered Riser in a room with another man, Joshua Redmond. Riser and Redmond were the only occupants of the room. One of the officers searched Redmond and found $637 in cash. He testified the bill denominations were consistent with amounts purchasers of crack cocaine would pay for the drug. The other officer searched Riser and found a bag of marijuana in his pocket. He handcuffed Riser. As he did so, Riser flipped a baggie of crack cocaine out of his pocket and began smashing it with his foot. The officer bent down to pick up the bag and noticed another bag of crack cocaine on the bed, within arms length of Riser. The officers found no personal use paraphernalia in the room.
A narcotics officer testified that the seized crack cocaine was packaged in a manner consistent with possession of the drug for delivery. The officer noted its street value of approximately $450 was also consistent with possession for sale rather than for personal use as was the fact that Redmond had the money and Riser had the drug. We find this evidence substantial and, therefore, sufficient to support the jury determination of guilt on the conspiracy charge. See State v. Speicher, 625 N.W.2d 738, 742 (Iowa 2001) (stating agreement need not be "formal and express" but may be a "tacit understanding" inferred from the circumstances).
II. Motions
Approximately thirteen days prior to trial, defense counsel received a laboratory report from the State listing the weight of the seized cocaine. Believing the weight was overstated, counsel filed a motion to compel the State to turn over the cocaine to the defense, for another opinion. Defense counsel simultaneously moved for a postponement of the trial date. The district court denied the motions, reasoning that they were filed just two days before trial, despite receipt of the lab report more than ten days earlier. The court also noted that defense counsel had not yet retained an expert to reweigh the drug evidence. We find no abuse of discretion in the court's rulings. See State v. Artzer, 609 N.W.2d 526, 529-31 (Iowa 2000) (reviewing denial of continuance motion for abuse of discretion); State v. Groscost, 355 N.W.2d 32, 34 (Iowa 1984) (reviewing denial of discovery motion for abuse of discretion). AFFIRMED.
Riser suggests in passing that trial counsel's conduct with respect to these motions "implicates his constitutional right to effective assistance of counsel so that the proper standard of review is de novo." However, his argument focuses on the trial court's ruling and on whether the ruling reflects an abuse of discretion. Accordingly, we have addressed the issue in that context.