Opinion
No. 2-092 / 01-0500.
Filed May 15, 2002.
Appeal from the Iowa District Court for Buchanan County, TODD A. GEER, Judge.
Straw appeals his conviction and sentence for manufacturing methamphetamine, contesting the sufficiency of the evidence and the sentencing procedures. CONVICTION AND JUDGMENT AFFIRMED, SENTENCE VACATED, CASE REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Denise Timmins, Assistant Attorney General, Allan Vander Hart, County Attorney, for appellee.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
John Straw appeals his conviction and sentence for manufacturing a controlled substance (methamphetamine). He contends (1) there is insufficient evidence to support his conviction and (2) the district court did not exercise its discretion to waive the mandatory minimum sentence. We affirm the conviction and judgment but vacate the sentence and remand for resentencing.
I. Background Facts and Proceedings
A jury could have found the following facts. Straw owned a home across the street from Independence Police Chief Michael McConnell. One afternoon, McConnell was playing with his dog in the front yard of his home when he smelled a strong chemical odor coming from Straw's open garage. As he walked across the street to investigate further, the garage door closed. Suspecting that someone inside had noticed him, McConnell retreated to his house and called for backup assistance. Two officers arrived at the scene. As they proceeded to the house, Straw came around the side and met them. He consented to have the officers search the area. In the garage, officers discovered a cooler containing a substance with a strong chemical smell, as well as a gun. They saw a woman and a young child in the living room. At that point, they left and called in members of a specialized task force, who discovered methamphetamine manufacturing materials throughout the home, methamphetamine products, a gun in the living room, and several guns in an upstairs vault.
The State charged Straw with one count of manufacturing a controlled substance (methamphetamine) and sought sentencing enhancements based on possession or control of a firearm and commission of a crime in the presence of a minor. Iowa Code §§ 124.401(1)(c)(6), (1)(e) and 124.401C (1999). A jury found Straw guilty and applied both enhancements. The district court sentenced him to an indeterminate prison term not exceeding twenty-five years. This appeal followed.
The State also charged Straw with one count of child endangerment, in violation of Iowa Code § 726.6(1)(a). The court sustained Straw's motion for judgment of acquittal with respect to this count.
The court doubled the ten-year sentence prescribed by Iowa Code section 902.9(3) and section 124.401(1)(c), based on the firearm enhancement provision (section 124.401(1)(e)), and added five years for the "in the presence of a minor" enhancement, pursuant to section 124.401C.
II. Sufficiency of the Evidence
Straw maintains there was insufficient evidence to establish that he was involved in the manufacture of methamphetamine or to support the sentencing enhancements. Our review of insufficiency claims is on error. State v. Chang, 587 N.W.2d 459, 461-2 (Iowa 1998). We will uphold the verdict if it is supported by substantial evidence. Id. at 462.
A. Manufacture of Methamphetamine . We find substantial evidence to support Straw's conviction for manufacturing methamphetamine. Although Straw maintained he had moved from the home several months earlier because of flood damage, a jury could have found from Police Chief McConnell's testimony that Straw regularly came to the home. Straw did not deny this fact, stating he "would go in and check things." Straw also stated he did not give anyone permission to stay at his house for any reason. Additionally, there was evidence Straw continued to receive mail at that address and left his gun collection at the home. A jury reasonably could have inferred that Straw had exclusive control over the home and was the person who manufactured the methamphetamine found there.
B. Presence of a Minor . Straw next contests the sufficiency of the evidence supporting the "in the presence of a minor" enhancement. That term is defined to include the following scenarios:
a. When a minor is physically present during the activity.
b. When the activity is conducted in the residence of a minor.
c. When the activity is conducted in a building where minors can reasonably be expected to be present.
Iowa Code § 124.401C(2). There is sufficient evidence to support the third definition. A toddler was sitting in the living room when the police searched the home. A special agent testified, "we found items everywhere with the exception, you know — I don't think there was an exception. Every room had something for making methamphetamine." Fresh chemical odors permeated the house, suggesting methamphetamine had recently been manufactured. In light of this evidence, a jury would not have had to speculate to find methamphetamine was manufactured in the presence of a minor.
C. Firearm Enhancement . Straw finally contends there was insufficient evidence to show he was in the immediate possession or control of a firearm. In State v. McDowell, 622 N.W.2d 305 (Iowa 2001), our highest court stated "immediate possession" means "actual possession on one's person." Id. at 307 (citing State v. Eickelberg, 574 N.W.2d 1, 5 (Iowa 1997)). "Immediate control," in contrast, only requires a showing that "the defendant was in such close proximity to the weapon as to claim immediate dominion over it." Id. Both "immediate possession" and "immediate control" require a showing that the defendant had "knowledge of the firearm's existence and location." Id. at 308.
There is no evidence that Straw had immediate possession of a firearm. The only question is whether he had immediate control. A jury could have concluded he did. One loaded revolver was found sitting in plain view on a six-foot cabinet in the garage. Another gun was found on a table in the dining area. Although Straw claimed neither belonged to him, a jury could have concluded otherwise based on his exclusive control of the premises. See State v. Laffey, 600 N.W.2d 57, 59 (Iowa 1999) (province of the jury to weigh evidence).
III. Sentence
Iowa Code section 124.413 sets forth a mandatory minimum sentence for people convicted of certain drug offenses. It states in pertinent part that
[a] person sentenced pursuant to section 124.401, subsection 1, paragraph . . . "c" . . . shall not be eligible for parole until the person has served a minimum period of confinement of one-third of the maximum indeterminate sentence prescribed by law.
Although this provision is couched in mandatory terms, another code provision affords a sentencing court discretion to reduce the minimum period of confinement. See Iowa Code § 901.10(1). It provides that a court sentencing a first time offender for a conviction under section 124.413 has discretion to sentence the person to "a term less than provided by statute if mitigating circumstances exist and those circumstances are stated specifically in the record." Iowa Code § 901.10(1).
Construing these two provisions, our highest court recently held that a sentencing court has discretion to reduce the "minimum period of confinement" set forth in section 124.413 but does not have discretion to reduce "the maximum indeterminate sentence prescribed by law." State v. Iowa Dist. Court for Monroe County, 630 N.W.2d 778, 781-2 (Iowa 2001).
Straw seeks a waiver of the "minimum period of confinement" prescribed by section 124.413. He contends the district court erroneously believed it lacked discretion to confer such a waiver. The State responds thatthe firearm enhancement provision under which Straw was also sentenced precludes a reduction of the minimum period of confinement notwithstanding the discretion-conferring language of section 901.10(1). See Iowa Code 124.401(1)(e). We disagree.
Before the district court, Straw's counsel agreed the mandatory minimum term could not be reduced. This concession, however, does not preclude our review. See State v. Ayers, 590 N.W.2d 25, 27 (stating it would be fundamentally unfair to find a failure to preserve error of this issue).
The firearm enhancement provision contained in 124.401(1)(e) states:
e. A person in the immediate possession or control of a firearm while participating in a violation of this subsection shall be sentenced to two times the term otherwise imposed by law, and no such judgment, sentence, or part thereof shall be deferred or suspended.
(Emphasis added). We believe this provision only precludes a sentencing court from deferring or suspending the "maximum indeterminate sentence prescribed by law" which, in this case is twenty-five years. See State v. Goodson, 503 N.W.2d 395, 398-99 (Iowa 1993) (holding provision removes discretion to impose anything other than twice the indeterminate sentence). Section 124.401(1)(e) does not preclude the court from reducing the "minimum period of confinement" prescribed by section 124.413 which, in this case, would be eight and one-third years. Cf. State v. Ayers, 590 N.W.2d 25, 26 (Iowa 1999) (holding section 901.10 authorized court to reduce the mandatory minimum five-year sentence prescribed by section 902.7, a provision that enhances a sentence based on immediate possession and control of a dangerous weapon).
We conclude the district court had discretion to reduce Straw's minimum period of confinement prescribed by Iowa Code section 124.413, notwithstanding the language of section 124.401(1)(e). The court did not exercise this discretion. Ayers, 590 N.W.2d at 27 (stating when a sentencing court has discretion, it must exercise that discretion). Therefore, we vacate the sentence and remand for resentencing. Id.
CONVICTION AND JUDGMENT AFFIRMED, SENTENCE VACATED, CASE REMANDED FOR RESENTENCING.