Opinion
No. 1-84 / 00-299.
Filed May 9, 2001.
Appeal from the Iowa District Court for Davis County, DANIEL P. WILSON, Judge.
David Tapley appeals from his convictions for conspiracy to manufacture methamphetamine, possession of a precursor with intent to manufacture methamphetamine, child endangerment, and dominion and control of a firearm by a felon. AFFIRMED IN PART AND REVERSED IN PART.
Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, Rick Lynch, County Attorney, and Rose-Ann Medford, Assistant County Attorney, for appellee.
Considered by STREIT, P.J., and HECHT and VAITHESWARAN, JJ.
David Tapley — convicted of conspiracy to manufacture methamphetamine, possession of a precursor with intent to manufacture methamphetamine, five counts of dominion and control of a firearm by a felon, and child endangerment — claims he was merely at the wrong place at the wrong time. We affirm in part and reverse in part.
I. Background Facts Proceedings .
In February 1999 a Davis County law enforcement officer smelled a strong odor of ether as he drove past a mobile home owned by Amanda Feeney. Because of the suspicious odor, he and two other officers decided to do a "knock and talk" at the home. When no one answered the front door, one of the officers went behind the mobile home to look for another door. He observed items related to methamphetamine manufacturing on the premises.
The officers subsequently evacuated Feeney, David Tapley, their infant son, and another adult female from the mobile home. A search of the mobile home and the surrounding premises led to the discovery of various items related to methamphetamine manufacturing including: a thirty-pound propane cylinder containing anhydrous ammonia, pseudoephedrine and ephedrine containers, coffee filters and shirts encrusted with a white-powder residue, an acetone can and starting fluid and ether cans, disassembled lithium batteries, two scales, a respirator, and methamphetamine. Five guns were also discovered in the master bedroom.
Tapley was charged and convicted of conspiracy to manufacture methamphetamine, possession of a precursor with intent to manufacture methamphetamine, five counts of dominion and control of a firearm by a felon, and child endangerment. On appeal, he claims the evidence was not sufficient to support these convictions, his stipulation to a prior felony conviction should not have been presented to the jury, and his trial counsel was ineffective.
II. Sufficient Evidence .
We review Tapley's challenges to the sufficiency of the evidence for errors at law. Iowa R. App. P. 4; State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). We will uphold a jury verdict under a sufficiency of the evidence challenge if it is supported by substantial evidence. State v. Chang, 587 N.W.2d 459, 462 (Iowa 1998). If a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt, the evidence is substantial. Thomas, 561 N.W.2d at 39. We review the evidence in the light most favorable to the State; this includes all legitimate inferences that may fairly and reasonably be deduced from the evidence. State v. Casady, 597 N.W.2d 801, 804 (Iowa 1999).
A. Conspiracy to Manufacture Methamphetamine.
Section 124.401(1) of the Iowa Code states "it is unlawful for any person . . . to conspire with one or more other persons to manufacture . . . a controlled substance." Iowa Code § 124.401(1) (1997). Tapley claims he was not part of such a conspiracy. "A conspiracy is a combination or agreement between two or more persons to do or accomplish a criminal or unlawful act, or to do a lawful act in an unlawful manner." State v. Ross, 573 N.W.2d 906, 914 (Iowa 1998); see alsoIowa Code § 706.1(1) (defining the crime of conspiracy). An agreement, in turn, is "a mental confederation involving at least two persons." State v. Speicher, ___ N.W.2d ___ (Iowa 2001) (citations omitted). Such a confederation may be "inferred from the circumstances, especially declarations, acts, and conduct of the alleged conspirators." State v. Mapp, 585 N.W.2d 746, 748 (Iowa 1998) (citations omitted).
Tapley argues the evidence in this case only establishes he happened to be at Feeney's mobile home while items related to the manufacturing of methamphetamine were also there. The State counters that, even if Tapley did not live at the mobile home, substantial evidence supports the finding he was part of a conspiracy to manufacture methamphetamine. Some of the evidence suggests Tapley knew Feeney or others were manufacturing methamphetamine at or nearby the mobile home. For example, Tapley was at the mobile home at roughly one o'clock in the morning when a law enforcement officer driving past smelled a strong odor of ether. Moreover, when officers approached the home, they heard noises coming from within and saw Tapley standing in the doorway of the master bedroom — but no one answered their knocks for about fifteen minutes. Finally, when officers searched the mobile home and the surrounding premises, they found numerous items — many of which were in plain view — related to methamphetamine manufacturing. However, this evidence does not support the finding Tapley agreed with Feeney or anyone else to manufacture methamphetamine. See Speicher, ___ N.W.2d at ___ (reversing a conviction for conspiracy to manufacture methamphetamine although law enforcement officers smelled ether coming from a garage and observed the defendant and another man leave the garage, the men attempted to run away from the officers, and a meth lab was found in the garage). As recently stated by our supreme court, "Without proof of any involvement from which to infer agreement, this essential element of the [conspiracy] offense rests on nothing but conjecture and speculation." Id.
Accordingly, whether Tapley's conviction for conspiracy to manufacture methamphetamine is supported by substantial evidence hinges on the significance of the evidence suggesting Tapley was living at Feeney's mobile home in February 1999. Tapley and three other defense witnesses testified he had not lived with Feeney since November 1998, but he regularly came to her mobile home to visit their son. However, law enforcement officers found mail, including a W-2 statement, addressed to Tapley at the mobile home; a pair of men's underwear and a pair of men's jeans consistent with Tapley's size; and three vehicles registered to either Tapley or his mother. Moreover, Tapley was at the mobile home at roughly one o'clock in the morning and, according to his testimony, preparing to take a shower. Finally, Tapley testified that when he left the mobile home during the officers' search he went to a motel — not to the home at which he was purportedly living. A reasonable jury thus could have concluded Tapley was at least a part-time resident of Feeney's mobile home. It is, after all, "the very function of the jury . . . to sort out the evidence and `place credibility where it belongs.'" State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993) (citations omitted).
Even so, it does not necessarily follow a reasonable jury could find Tapley guilty beyond a reasonable doubt of being part of a conspiracy to manufacture methamphetamine. Other courts have reversed conspiracy convictions in drug cases in which the alleged conspirator lived at the scene of the crime. See United States v. Ocampo, 964 F.2d 80, 82-83 (1st Cir. 1992) (reversing a conviction for conspiracy to distribute cocaine although the defendant shared a small apartment with her alleged co-conspirator and a beeper, drug paraphernalia, and 2.5 kilos of cocaine were found at the apartment); Clayton v. State, 582 So.2d 1019, 1022-23 (Miss. 1991) (reversing a conviction for conspiracy to distribute cocaine although the defendant shared a mobile home with her alleged co-conspirator, shouted a warning when law enforcement officers entered the mobile home, and had cocaine residue in her purse); Com v. Ocasio, 619 A.2d 352, 354-55 (Pa.Super.Ct. 1993) (reversing a conviction for conspiracy to distribute cocaine although the defendant was a resident of a house where officers found significant amounts of cocaine and cash and defendant had over $400 of cash in small denominations in his pocket). A critical factor leading to each of these reversals was the lack of evidence from which a jury could properly infer the alleged conspirator agreed to participate or aid in the underlying drug-related activity. See, e.g., Ocasio, 619 A.2d at 355 ("After carefully examining all of the circumstances in the instant action, we find that the Commonwealth has established no more than a mere suspicion that appellant agreed to participate or aid in the drug distribution."). Here, there is no evidence Tapley acquired any of the suspicious items found in and around Feeney's mobile home, took part in any stage of the manufacturing process, funded the suspected drug operation, or otherwise participated or aided in the manufacture of methamphetamine. Thus, given the evidence that is in the record, establishing Tapley agreed with Feeney or others to manufacture methamphetamine would require piling inference upon inference. A reasonable jury could not find Tapley guilty beyond a reasonable doubt of being part of a conspiracy to manufacture methamphetamine.
B. Possession of a Precursor.
Section 124.401(4) states the following:
It is unlawful for any person to possess any product containing ephedrine, its salts, optical isomers, salts of optical isomers, or analogs of ephedrine, or pseudoephedrine, its salts, optical isomers, salts of optical isomers, or analogs of pseudoephedrine, with the intent to use the product as a precursor to any illegal substance or an intermediary to any controlled substance.
Tapley claims he did not possess any such products. The statute prohibits both actual and constructive possession of a precursor. See State v. Rudd, 454 N.W.2d 570, 571 (Iowa 1990). A person is in actual possession of something on or around his person when he "has direct physical control" of it. State v. Maghee, 573 N.W.2d 1, 10 (Iowa 1997) (citation omitted). A person is in constructive possession of something when, although he does not have actual possession of it, he "has knowledge of the presence of [it] and has the authority or right to maintain control of it either alone or together with someone else." Id. Our supreme court once stated it allows "an inference of constructive possession when the [item at issue] is found in a place where the defendant is not in sole dominion or control." State v. Simpson, 528 N.W.2d 627, 632 (Iowa 1995) (emphasis added). Recently, however, the court has backed away from this position and reasserted the applicability of State v. Reeves, 209 N.W.2d 18 (Iowa 1973). See State v. McDowell, 622 N.W.2d 305, 309 (Iowa 2001) (Ternus, J. concurring specially); State v. Atkinson, 620 N.W.2d 1, 3 (Iowa 2000). In Reeves, the court stated the following:
But where the accused has not been in exclusive possession of the premises but only in joint possession, knowledge of the presence of the [items at issue] on the premises and the ability to maintain control over them 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 [items] on the premises.Reeves, 209 N.W.2d at 23 (emphasis added).
Tapley again argues he was wrongfully convicted given he was merely at the wrong place at the wrong time. His argument again has merit. At best, Tapley was in joint possession of the home and the surrounding premises. While searching there, law enforcement officers found two empty Sudafed boxes in trash bags in the back of a pickup, four more empty Sudafed boxes in a trash bag in the kitchen, and an empty Ephedrine Plus bottle in the trash in the master bedroom. There is no evidence showing Tapley had exclusive access to the places where these containers were found. Moreover, there is no evidence — such as an admission by Tapley, eyewitness testimony, or cash-register receipts — linking him to these containers and the pills that had been in them. The evidence thus does not support a finding that he had "direct physical control" over the pills. Nor is the evidence "of the type credited in the Reeves case to establish his knowledge and control over [them]." See McDowell, 622 N.W.2d at 308. A reasonable jury could not find him guilty beyond a reasonable doubt of actually or constructively possessing a precursor with the intent to manufacture methamphetamine.
The pickup was registered in Tapley's mother's name. It was one of several vehicles parked outside of Feeney's mobile home.
C. Dominion and Control of a Firearm.
Section 724.26 states "a person who is convicted of a felony . . . and who knowingly has under the person's dominion and control . . . a firearm . . . is guilty of a class `D' felony." Tapley does not dispute he has previously been convicted of a felony. He claims, however, he did not have the five firearms found at Feeney's mobile home under his dominion and control. Our supreme court has equated "dominion and control" with "possession." See State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995); cf. United States v. Castillo, 866 F.2d 1071, 1086 (9th Cir. 1988). Accordingly, we apply the above-discussed principles regarding actual and constructive possession to Tapley's third sufficiency-of-the-evidence challenge.
Once again, Tapley argues his convictions are based on improper conjecture and speculation. His argument is partially correct. Law enforcement officers found four guns on a gun rack in the master bedroom and a fifth gun in a closet in that bedroom. One officer saw Tapley standing in the doorway of the bedroom — and thus within a few feet of the guns that were in plain view on the gun rack. This evidence, when coupled with the evidence suggesting Tapley was at least a part-time resident of the mobile home, supports a finding that Tapley knew about the four guns on the gun rack and had the ability to maintain control over them. It does not, however, support a similar finding as to the gun discovered in the bedroom closet. See Reeves, 209, N.W.2d at 23. A reasonable jury could have found Tapley guilty beyond a reasonable doubt of only four counts of dominion and control of a firearm by a felon.
D. Child Endangerment.
Section 726.6(1)(a) states a "parent . . . commits child endangerment when . . . [he] . . . [k]nowingly acts in a manner that creates a substantial risk to a child or minor's physical, mental or emotional health or safety." On appeal, Tapley claims there was not sufficient evidence to convict him of child endangerment because, although the State presented evidence about the potential dangers inherent in methamphetamine manufacturing, it failed to present evidence regarding the likelihood of these dangers occurring. However, when Tapley moved for a judgment of acquittal, his attorney merely stated "I believe that the State has not presented evidence that in any fashion could reasonably sustain a conviction." "Accordingly, [Tapley's] motion for judgment of acquittal did not preserve the specific arguments he is now making for the first time on appeal." State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996).
III. Presentation of Prior Felony Conviction to the Jury .
As was alluded to previously, Tapley stipulated at trial he had been previously convicted of a felony. He claims the trial court should not have allowed the State to present his stipulation to the jury given Iowa Rule of Evidence 404(b), a rule that limits the admissibility of '[e]vidence of other crimes, wrongs, or acts." We review for an abuse of discretion. State v. Anderson, 565 N.W.2d 340, 342 (Iowa 1997).
Tapley's claim is without merit. His felony status was an essential element of a crime with which he had been charged, namely dominion and control of a firearm by a felon. See Iowa Code § 724.26. Accordingly, the State was required to present proof of that status in its case-in-chief. State v. Cook, 565 N.W.2d 611, 615 (Iowa 1997); State v. Walton, 311 N.W.2d 110, 112-13 (Iowa 1981). The trial court did not abuse its discretion.
IV. Effective Assistance of Counsel .
We review Tapley's claims of ineffective assistance of counsel de novo. See State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). To prevail, Tapley must prove his trial attorney failed in an essential duty and prejudice resulted. See State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999). We can decide his claims on direct appeal if he fails to prove either of these two prongs. State v. Pierson, 554 N.W.2d 555, 562 (Iowa Ct. App. 1996).
A. References to Prior Felony Conviction.
Tapley argues his trial attorney should have objected to the State's "repeated references" to his prior felony conviction in the trial information and the marshaling instructions. As was discussed previously, the State was required to present Tapley's stipulation regarding his felony conviction to the jury given Tapley's felony status was an essential element of the crime of dominion and control of a firearm by a felon. See Cook, 565 N.W.2d at 615; Walton, 311 N.W.2d at 112-13. Similarly, the State could refer to the elements of this crime in the trial information and the marshaling instructions. Tapley argues his trial attorney should have sought to eliminate the need for such references by requesting a supplemental trial information and an appropriate special interrogatory. These devices, however, are designed to be used when a defendant is facing an enhanced sentence because of his prior convictions or when a defendant is facing a mandatory minimum sentence because he used a dangerous weapon while participating in a forcible felony. SeeIowa Rules of Crim. Pr. 6(5), 21(2); see also Cook, 565 N.W.2d at 614-15. But cf. State v. Smith, 576 N.W.2d 634, 637 (Iowa Ct. App. 1998). Tapley's trial attorney did not breach an essential duty.
These references apparently did not include the name and nature of Tapley's prior felony conviction.
B. Opinion Testimony.
Tapley argues his trial attorney also should have objected to a State's witness's opinion that Feeney had been using methamphetamine before law enforcement officers arrived at her mobile home because such testimony was improper pursuant to Iowa Rules of Evidence 402, 403, 404, 701, and 702. Tapley further argues he was prejudiced by his trial attorney's failure to object to this improper testimony because it tended "to establish [his] guilt by association, based upon conjecture, speculation, and suspicion." Tapley raises this particular ineffective-assistance-of-counsel claim in the context of his convictions for conspiracy to manufacture methamphetamine and possession of a precursor with intent to manufacture methamphetamine. Because we have reversed these convictions, we do not consider Tapley's claim.
Tapley focuses on rule 701, a rule that limits the admissibility of opinion testimony by lay witnesses.
V. Conclusion .
We have considered all of the claims Tapley has presented on appeal, whether discussed in detail or not. Having done so, we affirm his convictions for four counts of dominion and control of a firearm by a felon and child endangerment. We reverse his convictions for conspiracy to manufacture methamphetamine, possession of a precursor with intent to manufacture methamphetamine, and one count of dominion and control of a firearm by a felon; vacate the sentences imposed for these convictions; and dismiss the accompanying charges. As the district court has ordered, the sentences for Tapley's remaining convictions shall run concurrently.
AFFIRMED IN PART AND REVERSED IN PART.