Opinion
No. 1-620 / 00-1210.
Filed February 20, 2002.
Appeal from the Iowa District Court for Polk County, ARTHUR E. GAMBLE, Judge.
The defendant appeals from the judgment and sentence entered following jury verdicts finding him guilty of conspiracy to manufacture more than five grams of methamphetamine and manufacturing more than five grams of methamphetamine in violation of Iowa Code section 124.401(1)(b)(7) (Supp. 1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, John P. Sarcone, County Attorney, and Stephanie L. Cox, Assistant County Attorney, for appellee.
Heard by MAHAN, P.J., and MILLER and HECHT, JJ.
The defendant, Richard Shiner, appeals from the judgment and sentence following jury verdicts finding him guilty of conspiracy to manufacture more than five grams of methamphetamine and manufacturing more than five grams of methamphetamine. He contends (1) the trial court erred in refusing to allow a trial on the minutes of evidence, and (2) the evidence was insufficient to prove that he conspired to manufacture and manufactured over five grams of methamphetamine. We affirm.
I. BACKGROUND FACTS.
Under the record in this case, the jury could reasonably have found the following facts. On December 29, 1999, Des Moines police officers executed a search warrant on a residence shared by Shiner, his girlfriend Tamara Pedersen, and several others. The search uncovered empty ephedrine or pseudoephedrine bottles, bottles containing ephedrine, other items used in the manufacture of methamphetamine, and trace amounts of methamphetamine. Shiner's fingerprints were found on two items used in the manufacturing process. Shiner, Pedersen, and three others were charged with conspiracy to manufacture methamphetamine and manufacturing methamphetamine in violation of Iowa Code section 124.401(1)(c)(6) (Supp. 1999), class "C" felonies.
Codefendant Stephen Stockbauer was also charged with possession of marijuana, and codefendants Harold Sherman and Sandra Beerbower were charged with possession of methamphetamine.
The State offered to allow Shiner, Pedersen, and their codefendants to plead guilty to the class "C" felonies. The offer was a package deal, so that all the codefendants would be required to plead guilty to take advantage of the State's offer. The offer was originally open until April 7, 2000, ten days before trial was to begin on April 17.
The court scheduled motions for hearing on April 14. As of that date Shiner and Pedersen's three co-defendants had agreed to bench trials on the minutes of evidence and one of them had been so tried. The State had received laboratory reports on April 13 and filed a motion to amend the trial information to charge Shiner and Pedersen with conpsiracy to manufacture more than five grams of methamphetamine and manufacturing more than five grams of methamphetamine, both class "B" felonies. On April 14 the court granted the motion to amend but also continued trial to May 3. In order that Shiner and Pedersen would have the same opportunities concerning resolution of their cases as their co-defendants, the State suggested and the court ordered that Shiner and Pedersen would have until May 2 to either plead guilty to the two class "C" felonies originally charged or have a trial conducted on the minutes of evidence.
Shiner and Pedersen did not plead guilty or have a trial on the minutes before May 2. Instead, after the close of business on May 2 they offered to tender pleas of guilty to the class "C" charges. The State agreed to allow them to do so. On May 3, the morning of jury trial, Shiner and Pedersen informed the court they wished to plead guilty to the class "C" felonies. However, after the court engaged in an extended plea colloquy they then indicated for the first time that they instead wished to submit to a trial on the minutes of evidence. The court refused to conduct a trial on the minutes and allowed Shiner and Pedersen to either plead guilty (to the class "C" felonies) or go to trial (on the class "B" felonies). Shiner and Pedersen then attempted to enter Alford pleas. After further extended colloquy during which both defendants in essence denied all essential elements of the two class "C" felonies the court found there was an insuficient factual basis for even Alford pleas and declined to accept the guilty pleas.
The case proceeded to jury trial on May 3. The jury found Shiner guilty of the class "B" felonies. The trial court merged the offenses and sentenced him to an indeterminate, twenty-five-year term of imprisonment. Shiner appeals.
The jury found Pedersen not guilty of the charged offenses.
II. TRIAL ON THE MINUTES.
On appeal, Shiner argues that the trial court must provide a legal reason for refusing to allow a trial on the minutes, and the court erred in relying on the minutes of evidence in denying his request. Shiner, Pedersen, and the State had agreed on the morning of May 3, 2000 to request the court to conduct a trial on the minutes.
The parties agree the scope of review is for the correction of errors at law. See Iowa R. App. P. 4. Because we conclude Iowa Rule of Criminal Procedure 16(1) is implicated, we review the trial court's refusal to allow a trial on the minutes for abuse of discretion. State v. Mann, 512 N.W.2d 814, 816 (Iowa Ct. App. 1993).
We believe that implicit in Shiner's request for a trial on the minutes is that the case would proceed as a bench trial on the minutes. If a defendant stipulates to a bench trial on the minutes, the court must verify that the defendant waived his right to a jury trial in accordance with rule 16(1). State v. Sayre, 566 N.W.2d 193, 196 (Iowa 1997). Therefore, we conclude that Shiner's claim is properly considered under rule 16(1). That rule provides as follows:
Cases required to be tried by jury shall be so tried unless the defendant voluntarily and intelligently waives a jury trial in writing and on the record within thirty days after arraignment, or if no waiver is made within thirty days after arraignment the defendant may waive within ten days after the completion of discovery, but not later than ten days prior to the date set for trial, as provided in these rules for good cause shown, and after such times only with the consent of the prosecuting attorney.
Iowa R. Crim. P. 16(1) (emphasis added).
We conclude that, given the timing of Shiner's request with no good cause shown, the trial court did not abuse its discretion in refusing to proceed with a trial on the minutes. Shiner admits in his brief that he did not request a trial on the minutes until the morning of his jury trial. His request came even after the jury trial was scheduled to commence. After denying the parties' request for a trial on the minutes, the court noted that the jury was waiting. While the State did thereafter ask the court to reconsider and allow a trial on the minutes, no party at any time made any claim or showing that there was good cause for Shiner to waive his right to a jury trial. On appeal, Shiner contends good cause was established when the court in pretrial proceedings ruled that the State's offer be held open until May 2, 2000. However, Shiner's request for a trial on the minutes was not presented to the court before May 2 or even on May 2, but rather was presented while the jurors were waiting on May 3, 2000.
We have fully considered Shiner's contentions and find them without merit. We affirm on this issue.
III. SUFFICIENCY OF THE EVIDENCE.
On appeal, Shiner contends there is not sufficient evidence to uphold the jury verdicts. Specifically, he claims the potential yield analysis was premised on a number of facts not proven by the State. He maintains there was no evidence of (1) whether the tablets from the empty bottles were used in the manufacturing process, (2) how many tablets were used, and (3) when the methamphetamine was manufactured. He also argues there was an assumption the quality of his manufacturing would be similar to the potential yield formula, testified to by the forensic chemist, and the State should not be allowed to aggregate the amounts of methamphetamine made from multiple batches at different times to arrive at an amount in excess of five grams.
Because a jury verdict is binding on this court when supported by substantial evidence, appellate review of Shiner's sufficiency-of-the-evidence argument is for the correction of errors at law. State v. Speicher, 625 N.W.2d 738, 740 (Iowa 2001). Evidence is substantial if a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. State v. Casady, 597 N.W.2d 801, 804 (Iowa 1999). The jury was entitled to make reasonable inferences and presumptions and "to give as much weight to the evidence as, in its judgment, such evidence should receive." State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996). "Direct and circumstantial evidence are equally probative." Iowa R. App. P. 14(f)(16). This court reviews the evidence in a light most favorable to the State. Casady, 597 N.W.2d at 804. This includes all legitimate inferences that may fairly and reasonably be deduced from the evidence. Id.
The jury found Shiner guilty of conspiracy to manufacture more than five grams of methamphetamine and manufacturing more than five grams of methamphetamine. After stating at the sentencing hearing that the two crimes "merge for purposes of sentencing" (emphasis added) the trial court entered a written sentencing order convicting Shiner of both the conspiracy and manufacturing offenses but sentencing him to only one indeterminate, twenty-five year term of imprisonment. It did not state which of the convictions Shiner was sentenced on, Shiner's appeal challenges the judgment and sentence imposed on both convictions, and Shiner neither claims he was not sentenced for the conspiracy conviction nor claims it was improper for the trial court to enter judgment and impose sentence on the conspiracy verdict. Accordingly, we need decide only whether the jury verdict for conspiracy was supported by substantial evidence, and need not consider whether the jury verdict for manufacturing was supported by substantial evidence.
We note that upon timely request or objection Shiner's conviction and sentence would be for manufacturing methamphetamine. See State v. Waterbury, 307 N.W.2d 45, 52 (Iowa 1981) (holding that where conspiracy and a substantive offense have merged because the defendant has been found guilty of both, sentencing should be solely on the substantive offense).
We conclude that there was substantial evidence to support the jury's verdict finding Shiner guilty of conspiracy to manufacture more than five grams of methamphetamine. The forensic chemist's report shows that the potential yield of methamphetamine from the empty precursor packaging was 19.3 to 24.1 grams. Our supreme court has determined that a potential yield, rather than actual yield, of five grams of methamphetamine is sufficient to establish guilt of conspiracy to manufacture more than five grams of methamphetamine. Casady, 597 N.W.2d at 807; cf. State v. Royer, 632 N.W.2d 905, 909 (Iowa 2001). From the large number of empty ephedrine or pseudoephedrine bottles, other materials used to manufacture methamphetamine, and the traces of methamphetamine found in Shiner's residence the jury could legitimately infer Shiner had used the ephedrine or pseudoephedrine that came in the bottles to manufacture methamphetamine. The forensic chemist based her potential yield formula on the average yield for recipes that are found in and around Iowa. Furthermore, the chemist stated that the lowest yield she has seen was seventeen percent, which would result in a potential yield in excess of five grams from the precursors the jury could have found were available in this case. A legitimate inference from this evidence is that even if the process Shiner intended to use would yield only the minimum amount the precursors could produce the potential yield was nevertheless in excess of five grams.
As noted above, Shiner also claims the State should not be allowed to aggregate the amounts of methamphetamine made from multiple batches at different times to arrive at an amount produced in excess of five grams. For several reasons no reversible error is shown on this claim.
First, although Shiner's motions for judgment of acquittal on grounds of insufficiency of the evidence in a general sense preserved error on such a claim, see State v. Grosvenor, 402 N.W.2d 402, 406 (Iowa 1987), his motions contain no mention of or argument concerning aggregation or combination of amounts of methamphetamine made at different times. His motions thus did not preserve for our consideration the specific argument he now makes, and we need not consider it. See State v. Maghee, 573 N.W.2d 1, 9 (Iowa 1997); State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996); State v. Schertz, 328 N.W.2d 320, 321 (Iowa 1982).
Second, Shiner's brief quite specifically asserts that the State should not be allowed "to total the production of methamphetamine made from multiple batches at different time periods." His claim thus appears to relate to the charge of manufacturing, a charge which for reasons earlier stated we do not address, rather than relating to the charge we do address, conspiracy to manufacture.
Third, if we were to address the substance of Shiner's claim we would find it to be without merit. Aggregation is permitted when the same person commits two or more acts in violation of section 124.401(1) and the acts occur in approximately the same location or time period so that they can be attributed to a single scheme, plan, or conspiracy. Iowa Code § 124.401(2). "Acts" include conspiring to manufacture. Iowa Code § 124.401(1). The evidence presents a jury submissible issue concerning the facts necessary to support aggregation under section 124.401(2).
III. CONCLUSION.
We conclude the trial court did not abuse its discretion in refusing to proceed with a trial on the minutes. Substantial evidence supports the jury's verdict finding Shiner guilty of conspiracy to manufacture more than five grams of methamphetamine. We affirm the judgment and sentence.
AFFIRMED.