Opinion
No. 1-536 / 00-1425.
Filed June 19, 2002.
Appeal from the Iowa District Court for Polk County, DONNA L. PAULSEN, Judge.
Jeffrey Smith appeals from his convictions for possession of a controlled substance with intent to deliver, conspiracy to possess a controlled substance with intent to deliver, and failure to possess a tax stamp. AFFIRMED AND REMANDED FOR NEW TRIAL WITH INSTRUCTIONS.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers and Kristin Mueller, Assistant Attorneys General, John P. Sarcone, County Attorney, and Gary Kendell, Assistant County Attorney, for appellee.
Heard by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
Jeffrey Smith appeals from his convictions for possession of a controlled substance with intent to deliver, in violation of Iowa Code section 124.401(1)(c)(3) (1999); conspiracy to possess a controlled substance with intent to deliver, in violation of section 124.401(1)(c)(3); and failure to possess a tax stamp, in violation of sections 453B.3 and 453B.12. On remand, the district court granted Smith's request for a new trial. We affirm the grant of a new trial and remand.
I. Background Proceedings
Smith appealed his convictions, claiming (1) there was insufficient evidence in the record to support his conviction; (2) the district court applied the wrong standard of review to his motion for new trial; (3) evidence concerning marijuana should not have been admitted; (4) the court erroneously entered judgment on the conspiracy charge; and (5) his sentence was improper.
We determined the district court had applied an incorrect standard of review to Smith's motion for new trial, and remanded to the district court for reconsideration using the standard found in State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998). We retained jurisdiction of all other issues raised in the appeal. After a hearing, the district court granted the motion for new trial on each of the three charges against Smith, finding the verdict was contrary to the weight of the evidence in the case. We now exercise the jurisdiction that we retained.
II. Motion for New Trial
A motion for new trial is addressed to the discretion of the court. State v. Adney, 639 N.W.2d 246, 253 (Iowa Ct.App. 2001). A district court ruling on a motion for new trial will be reversed only for a demonstrated abuse of discretion. State v. O'Shea, 634 N.W.2d 150, 154 (Iowa Ct.App. 2001). We are more hesitant to interfere with the granting of a new trial than with a refusal. Iowa R. App. P. 6.14(6)(g); State v. Reeves, 636 N.W.2d 22, 26 (Iowa 2001).
Under Iowa Rule of Criminal Procedure 2.24(2)(b)(6), in considering a motion for new trial, a court may weigh the evidence and consider the credibility of witnesses, and a new trial should be granted if the court concludes that the verdict is contrary to the weight of the evidence. Ellis, 578 N.W.2d at 658-59. A verdict is contrary to the weight of the evidence where a greater amount of credible evidence supports one side of an issue or cause than the other. Id.
The district court properly applied this standard in considering the motion for new trial on remand. The court carefully considered the evidence and concluded the verdict was contrary to the weight of the evidence. The court noted there was little evidence connecting Smith to the drugs that were found. We determine the district court did not abuse its discretion. Smith is entitled to a new trial.
III. Motion in Limine
In the first trial, the district court denied Smith's motion in limine to exclude evidence that a burning marijuana cigarette was found in the stairway leading to the apartment where the arrest was made. Because this issue may arise again on retrial, we will address it.
We determine Smith preserved error on this issue. Under Iowa Rule of Evidence 5.404(b), evidence of other crimes is not admissible to prove the character of a person. The purpose of this rule is to exclude from the jury's consideration evidence which has no relevancy, but which is offered to show bad character. State v. Lockheart, 410 N.W.2d 688, 696 (Iowa Ct.App. 1987).
Our supreme court has stated, however, that "[w]hen acts are so closely related in time and place and so intimately connected that they form a continuous transaction, the whole transaction may be shown to complete the story of what happened." State v. Hood, 346 N.W.2d 481, 483-84 (Iowa 1984). Here, the burning marijuana cigarette on the stairs is part of the story to explain why a police officer followed Smith upstairs to the apartment, where illegal drugs were found. We determine the district court did not abuse its discretion by finding the evidence was admissible.
IV. Merger
The State has conceded that Smith should have been charged with two alternative means of violating section 124.401(1)(c)(3), and not with two offenses. See State v. Williams, 305 N.W.2d 428, 431 (Iowa 1981). This is an issue that may be remedied at retrial.
Due to the grant of a new trial, we do not address other claims raised by Smith in this appeal. Smith's convictions and sentences are reversed. The grant of the motion for new trial is affirmed. We remand for a new trial. We do not retain jurisdiction.
AFFIRMED AND REMANDED FOR NEW TRIAL WITH INSTRUCTIONS.