Opinion
No. 4-312 / 03-1000.
July 14, 2004.
Appeal from the Iowa District Court for Marion County, Dale B. Hagen, Judge.
Larry Thomas appeals from his convictions and sentences for conspiracy to manufacture methamphetamine and possession of precursors. REVERSED AND REMANDED.
Aaron Siebrecht and Cathleen Siebrecht of Borseth, Siebrecht Siebrecht Law Offices, Altoona, for appellant.
Thomas J. Miller, Attorney General, Robert Ewald, Assistant Attorney General, Terry Rachels, County Attorney, and Douglas Eichholz, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Huitink and Miller, JJ.
Defendant-appellant, Larry Thomas, appeals from his convictions and sentences for conspiracy to manufacture methamphetamine and possession of the precursors lithium and pseudoephedrine, all as a second or subsequent offender. He contends the State presented insufficient evidence to support the convictions. He also contends the court erred in admitting certain evidence over hearsay objections and in violation of his right to confront witnesses. Finding insufficient evidence, we reverse his convictions.
Background facts.
After a couple of months of surveillance of the defendant's home, police obtained a search warrant and executed it on January 24, 2003. While searching one of the bedrooms, officers discovered a hidden hole cut in the box springs. Inside the hole were lithium batteries, some of which had the outer casing removed, and a plastic bag of pseudoephedrine tablets, some of which had been crushed into powder. Other items related to drug manufacture, sale, or use were found in the home. In the defendant's car officers found a homemade hydrochloric acid generator and muriatic acid. In the garage, officers found rubbing alcohol and an empty camping fuel container. The defendant was not home during the search.
Trial proceedings.
Both the defendant and his wife, Jeanine, were arrested and charged with conspiracy to manufacture methamphetamine, possession of the precursor lithium, and possession of the precursor pseudoephedrine, all as second or subsequent offenses. They were tried as co-defendants in a jury trial, followed by a bench trial on the issue of previous convictions. In the jury trial, the State presented the testimony of three police officers and offered several exhibits. After the State rested, the defendants did not present any evidence. Defendants' counsel moved for a directed verdict on behalf of both defendants. Defendants rested, then moved for judgment of acquittal and renewed the motion for directed verdict. The court denied the motions and submitted the case to the jury, which found the defendants guilty. At the succeeding bench trial on proof of previous convictions, the court found both had been convicted before, making the current convictions second or subsequent offenses.
Claims on appeal.
On appeal, Larry contends there is insufficient evidence to support any of the convictions. He also contends the court erred in admitting hearsay evidence and violating his right to confront.
Scope and standards of review.
Our review of sufficiency-of-evidence challenges is for correction of errors of law. State v. Kirchner, 600 N.W.2d 330, 333 (Iowa Ct.App. 1999). A jury's findings of guilt are binding on appeal if supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Viewing the evidence in the light most favorable to the State we must determine whether the record contains substantial evidence to support the conviction. See State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). "Evidence is substantial if it could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt." State v. Bayles, 551 N.W.2d 600, 608 (Iowa 1996). We consider all of the evidence, not just the evidence supporting the verdict. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998). "The evidence must at least raise a fair inference of guilt as to each essential element of the crime. Evidence which merely raises suspicion, speculation, or conjecture is insufficient." State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992) (citations omitted). Inherent in our review of jury verdicts in criminal cases is the recognition the jury was free to reject certain evidence, and credit other evidence. State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994).
Discussion.
Possession of precursors.
The defendant did not have actual possession of the batteries or pseudoephedrine tablets, so the State must demonstrate constructive possession. Our supreme court has made proof of constructive possession more difficult recently. In State v. Cashen, 666 N.W.2d 566 (Iowa 2003), the supreme court vacated the court of appeals decision which found constructive possession. The defendant was in the back seat of a car with three others, including his girlfriend on his lap. Id. at 568. After a traffic stop, police found a plastic bag of marijuana wedged in the crevice between the seat back and seat, next to where Cashen was sitting. Id. Because Cashen did not have exclusive dominion and control of the area, the State had to provide evidence Cashen had actual knowledge of the drugs and had the authority or right to maintain control of them. Id. at 571. Proximity to the drugs was not enough to infer knowledge of dominion and control. Id. at 572. Even though Cashen admitted knowledge, there was no inference of dominion and control, and hence, no constructive possession. Id. at 573.
In State v. Dullard, 668 N.W.2d 585 (Iowa 2003), the supreme court vacated the court of appeals on other grounds, but found constructive possession of precursors where the defendant was in joint possession of the house with his mother and there was a handwritten note found with the precursors and other evidence of drug manufacture that linked the defendant to drug manufacture. Id. at 597-98.
Most recently, in State v. Bash, 670 N.W.2d 135 (Iowa 2003), the supreme court vacated the court of appeals and found no constructive possession by the co-defendant wife when drugs were found in a box on a nightstand on the husband's side of the bed. Id. at 136. The wife told police that if there were drugs in the house, they would be in the box, but denied they were hers or that she had any authority or right to maintain control over the contents of the box. Id. at 138-39. Our court found constructive possession. The supreme court stated,
the authority or right to maintain control includes something more than the "raw physical ability" to exercise control over the controlled substance. The defendant must have some proprietary interest or an immediate right to control or reduce the controlled substance to the defendant's possession.
Id. at 139.
In the case before us, the officers discovered the lithium batteries and the pseudoephedrine pills when a battery fell out of a hole cut in the box springs of a bed as officers moved the bed. Shining a flashlight into the hole, officers discovered the batteries and a plastic bag of pseudoephedrine pills. The record contains conclusory statements from the officers who testified that the bedroom was the defendant's, but gave no basis for that conclusion. He was not home to make any incriminating statements or actions upon the discovery of the items. There is no evidence his fingerprints were on the items. The hole was not in plain view and no testimony indicated the defendant knew the items were hidden in the box springs. No evidence indicated the defendant had any "proprietary interest or an immediate right to control or reduce the [precursors] to the defendant's possession." Id. The defendant was not in exclusive control or possession of the home, sharing it with his wife and children. The jury instruction required proof the defendant "knowingly or intentionally possessed" the items. From the evidence presented a rational jury would be left to speculate or base its findings on suspicion or conjecture. See Casady, 491 N.W.2d at 797. We conclude there is insufficient evidence in the record to support the defendant's convictions for possession of the precursors lithium and pseudoephedrine.
Conspiracy to manufacture.
The unchallenged jury instructions required the State to prove (1) an agreement to commit or attempt to commit the offense of manufacturing methamphetamine, (2) intent to promote or facilitate the manufacture, (3) an overt act, and (4) the other party was not a law enforcement agent or assisting such agents when the conspiracy began. Larry claims there was not sufficient evidence of an agreement, an overt act, or that Jeanine was not assisting the police.
As set forth in State v. Speicher:
Prior decisions have described an agreement to form a conspiracy as a "concert of free wills," "union of the minds of at least two persons," and "a mental confederation involving at least two persons." Both direct and circumstantial evidence may be used to prove such a meeting of the minds. Circumstantial evidence includes the declarations and conduct of the alleged conspirators and all reasonable inferences arising from such evidence. Importantly, an agreement need not be — and often times is not — formal and express. A tacit understanding — one "inherent in and inferred from the circumstances" — is sufficient to sustain a conspiracy conviction.
State v. Speicher, 625 N.W.2d 738, 741-42 (Iowa 2001) (citations omitted). In Speicher, the defendant was with another person in the garage where the meth lab was operating, he smelled of ether, and ran from the police. Id. at 740. The supreme court concluded a jury could infer only that Speicher knew of the manufacture, but not that he agreed with the other to participate. Id. at 742-43.
The most recent analysis of agreement in a conspiracy is State v. Weatherly, 679 N.W.2d 13 (Iowa 2004), in which the supreme court vacated the court of appeals decision that found insufficient evidence of an agreement. In Weatherly, the defendant was stopped after leaving a motel room where police smelled ether. Id. at 15. As police attempted to handcuff him, he ran, but was caught. Id. Officers found a plastic pop bottle containing a coffee filter which smelled of ether in his pocket. Id. The supreme court upheld his conviction, citing the facts he was carrying part of the meth lab with him and someone else rented the motel room as evidence in addition to that found in Speicher, and as sufficient to support a conspiracy conviction. Id. at 18.
In the case before us, we don't even have as much evidence of an agreement as in Speicher. The defendant was alone, was not present where a meth lab was operating, did not smell of ether, and did not flee police. Although the house, garage, and car contained many of the items needed to operate a meth lab, some of the items in the home have a legitimate use, such as the pliers, tinfoil, and acetone. The State argues the officer's testimony that meth labs never are operated alone permits an inference the defendant agreed with his wife to manufacture meth. We disagree. As in Speicher, the most a rational jury could find is that the defendant knew a meth lab could be made from the materials found at the scene.
The overt act cited by the State is the partial preparation of the precursors for use in manufacturing methamphetamine. The State provided no link between the defendant, or co-defendant, and that act. As noted before, there is no proof the defendant even knew the precursors were in the box springs.
The State offered no evidence on the final element, that the defendant's wife was not a police agent or assisting the police. The State argues it is reasonable to infer she was not assisting them from the fact they arrested and prosecuted her. We conclude a jury could reasonably infer the defendant's wife was not assisting the police or acting as their agent.
We find insufficient evidence in the record from which a rational jury could find the defendant agreed to manufacture methamphetamine. A jury would have to speculate about who started preparation of the precursors because there was nothing linking either defendant to their preparation. Consequently, we reverse the defendant's conviction for conspiracy to manufacture methamphetamine.
Hearsay and right to confront.
Having reversed the defendant's convictions, determining there is insufficient evidence in the record, even including the evidence challenged as hearsay, we need not address his hearsay and right-to-confront claims.
We reverse the defendant's convictions for conspiracy to manufacture methamphetamine, possession of the precursor lithium, and possession of the precursor pseudoephedrine. We remand this case for dismissal of the charges.