Opinion
No. 4-835 / 03-2020
Filed January 26, 2005
Appeal from the Iowa District Court for Scott County, Mark J. Smith (motion to suppress) and David H. Sivright, Jr. (trial), Judges.
John Thorpe appeals his convictions for possession of a controlled substance with intent to deliver, failure to affix a drug tax stamp, sponsoring a drug house, and child endangerment. AFFIRMED IN PART AND REVERSED IN PART.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, William E. Davis, County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., Mahan, Miller, and Vaitheswaran, JJ., and Nelson, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
I. Background Facts Proceedings
John Thorpe was charged with possession with intent to deliver a controlled substance (marijuana), in violation of Iowa Code section 124.401(1)(d) (2003); failure to affix a drug tax stamp, in violation of section 453B.3; sponsoring a gathering where controlled substances are unlawfully used, in violation of section 124.407; and child endangerment, in violation of section 726.6(1)(a), following the execution of a search at a Davenport residence. Prior to trial, Thorpe moved to suppress the evidence seized during that search. Thorpe claimed that the search warrant was invalid because there was no indication on the face of the warrant that the issuing judge relied on information furnished by a confidential informant. Thorpe also claimed that the warrant was illegally issued because there was no attesting signature by the issuing judge acknowledging the sufficiency of the applicant's supporting affidavit.
This charge was enhanced based on the "immediate possession and control of a firearm," in violation of section 124.401(1)(e). It was also enhanced because the house was within 1000 feet of a city park. See Iowa Code § 124.401A.
The trial court rejected Thorpe's challenge to the validity of the search warrant, finding that the issuing judge did not rely on information furnished by a confidential informant. The trial court also found that the issuing judge's attesting signature was unnecessary because the judge relied instead on the sworn personal testimony of the applicant police officer, Kevin Smull.
The case was tried to the court without a jury. The court denied Thorpe's motion for judgment of acquittal. Thorpe was found guilty of all four charges. He was sentenced to a term of imprisonment not to exceed ten years on the possession with intent to deliver charge, five years on the tax stamp charge, and one year of the sponsoring a gathering charge, all to be served concurrently. On the child endangerment charge, Thorpe was sentenced to a term not to exceed two years, and this was made consecutive to the other sentences.
II. Search Warrant Issues
On appeal Thorpe contends the search warrant was illegally issued because it was not supported by sworn testimony or affidavit. We disagree.
Our review of the statutory sufficiency of a search warrant is for the correction of errors of law. State v. Beckett, 532 N.W.2d 751, 753 (Iowa 1995). Iowa Code section 808.3 provides:
A person may make application for the issuance of a search warrant by submitting before a magistrate a written application, supported by the person's oath or affirmation, which includes facts, information, and circumstances tending to establish sufficient grounds for granting the application, and probable cause for believing that the grounds exist. The application shall describe the person, place, or thing to be searched and the property to be seized with sufficient specificity to enable an independent reasonable person with reasonable effort to ascertain and identify the person, place, or thing. If the magistrate issues the search warrant, the magistrate shall endorse on the application the name and address of all persons upon whose sworn testimony the magistrate relied to issue the warrant together with the abstract of each witness' testimony, or the witness' affidavit.
A search warrant may be based either on a written application, sworn testimony, or a combination of both. State v. Paschal, 300 N.W.2d 115, 117 (Iowa 1981).
Here, the judge's endorsement states, "in issuing the search warrant, the undersigned relied upon the sworn testimony of [Kevin Smull] in addition to the statements and information contained in the Application and any Attachments thereto." Smull testified that generally he was sworn in by the judge, but could not remember whether he actually gave sworn testimony in this case. The district court specifically found the issuing judge had placed Smull under oath at the time the application for the search warrant was presented. The judge's express statement in his endorsement supports this conclusion. We find no error in the district court's ruling and affirm on this issue.
III. Child Endangerment
Thorpe was charged with child endangerment because police found a child in the bedroom during the execution of the search warrant. Thorpe challenges the sufficiency of the evidence supporting his child endangerment conviction. He specifically claims the evidence does not support the trial court's finding that he was "[a] person who is the parent, guardian, or person having custody or control over a child. . . ." See Iowa Code section 726.6(1) (defining child endangerment).
We review sufficiency of the evidence claims for errors at law. Iowa R. App. P. 6.4. A conviction is not binding on appeal unless it is supported by substantial evidence. State v. Dalton, 674 N.W.2d 111, 116 (Iowa 2004). In determining whether there is substantial evidence, we review the evidence in the light most favorable to the State. State v. Sutton, 636 N.W.2d 107, 110 (Iowa 2001). Substantial evidence is such evidence as could convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt. State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993).
At trial, Officer Smull testified he could identify Thorpe because he was "familiar with Thorpe." When asked whether Thorpe was the father of the child, Smull twice testified without objection: "From what I understand, Mr. Thorpe [is]." and "From my knowledge, yes." The record, however, contains no evidence explaining the basis of Smull's assertion, nor is there any other evidence establishing Thorpe's relationship with the child. Contrary to the State's contention, we find Smull's equivocating testimony insufficient to prove Thorpe was the child's parent, guardian, or person having custody or control over the child. See State v. Gates, 306 N.W.2d 720, 724 (Iowa 1981) (noting that it would shift the burden of proof to determine a fact to be considered established absent the introduction of rebuttal evidence); State v. Hansen, 203 N.W.2d 216, 220 (Iowa 1972) (noting a defendant may present no evidence and have the case submitted to the jury to determine whether the State met its burden of proof to overcome the presumption of innocence). We reverse Thorpe's child endangerment conviction.
IV. Ineffective Assistance
Thorpe claims he received ineffective assistance from his trial counsel. He asserts his attorney should have presented evidence that he is not the father of the child involved in the child endangerment charge. Based on our decision above, we need not discuss this issue.
We affirm Thorpe's convictions for possession to deliver a controlled substance (marijuana), failure to affix a drug tax stamp, and sponsoring a gathering where controlled substances are unlawfully used. We reverse his conviction and sentence for child endangerment.