Opinion
No. 1-458 / 00-1487.
Filed January 28, 2002.
Appeal from the Iowa District Court for Polk County, DONNA L. PAULSEN, Judge.
The defendant appeals his convictions and sentences for child endangerment, possession of marijuana with intent to deliver, and a drug tax stamp violation. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, John P. Sarcone, County Attorney, and Daniel Voogt, Assistant County Attorney, for appellee.
Heard by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Anthony Webb appeals his convictions and sentences for child endangerment in violation of Iowa Code section 726.6 (1999), possession of marijuana with intent to deliver in violation of Iowa Code section 124.401(1)(d), and failure to possess a drug tax stamp, in violation of Iowa Code sections 453B.3 and 453B.12. We affirm.
Background Facts and Proceedings . Based on an anonymous complaint and the subsequent stop of a man named Jason Stansbury, police proceeded to the apartment Stansbury shared with Anthony Webb, Crisee Moore, and Moore's young son. Moore allowed police into the living room, where they viewed small amounts of material they believed to be marijuana. The officers secured the premises and obtained a search warrant. Among the items uncovered and retrieved were traces of marijuana plant material; drug paraphernalia with ash and THC-positive residue; just under a pound of marijuana, in brick form, located in two containers in the upper freezer compartment of the refrigerator; and a bag with a handgun, ammunition, and cigarette rolling papers located under a bathroom sink.
Webb was charged with child endangerment, possession of marijuana with intent deliver while in the immediate possession or control of a firearm, and a drug tax stamp violation. Prior to trial the district court considered the admissibility of a photocopy of a potentially exculpatory letter, purportedly drafted by a Tim Way. The letter claims Way hid the marijuana in the freezer and the gun under the sink, and asserts Webb had no knowledge Way had hidden the items in the apartment. The court ruled the letter and related foundational testimony inadmissible, finding insufficient indicia of authentication, trustworthiness and corroborating circumstances.
Webb also filed a pre-trial motion in limine challenging admission of a prior conviction for possession of marijuana with intent to deliver. The district court ruled the evidence admissible, but expressed some reservations, apparently in regard to the level of detail and specifics the State would attempt to introduce. Although It informed defense counsel it would be "happy to entertain" an objection during trial, no further objections were made.
After a jury trial Webb was acquitted of the gun enhancement, but was convicted of and subsequently sentenced for child endangerment, possession with intent to deliver, and the tax stamp violation. Webb appeals, challenging the exclusion of the letter and admission of his prior conviction, as well as the sufficiency of the evidence to support his current convictions. He offers alternative ineffective assistance of counsel arguments regarding the sufficiency of the evidence and the admission of the prior conviction.
Scope of Review . This matter is reviewed for correction of errors at law. Iowa R. App. P. 4. However, to the extent Webb raises constitutional issues, such as ineffective assistance of counsel, our review is de novo. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996).
Exculpatory Letter . The court's decision to deny admission of the letter purportedly drafted by Tim Way was an evidentiary ruling, which is reversed only upon a demonstrated abuse of discretion. State v. Sallis, 574 N.W.2d 15, 16 (Iowa 1998). Webb contends the photocopy of the letter should have been admitted into evidence, even though Way invoked his Fifth Amendment privilege against self incrimination and would not testify regarding the letter or its contents. Webb points to the pre-trial hearing testimony of his cousin, Randy Slaughter, who identified the offered exhibit as a photocopy of the letter Way had given to him, with instructions to pass the letter on to Moore. Slaughter also testified he had seen Way in Webb's apartment and that Way was friends with Webb, Moore, and Stansbury. Webb contends the letter is admissible as a statement against interest from an unavailable witness under Iowa Rule of Evidence 804(b)(3).
As a precursor to admissibility, the exhibit must be sufficiently authenticated. Iowa R. Evid. 901. Here the testimony indicated the photocopy was of a letter Way handed to Slaughter. Nothing shows Way actually wrote the letter. Cf. Anderson v. Low Rent Housing Commission of Muscatine, 304 N.W.2d 239, 252 (Iowa 1981) (finding typed letter admissible where declarant identified exhibit and testified to preparing it).
In addition, as the letter was offered to exculpate Webb and tended to expose Way to criminal liability, admission depended on the presence of corroborating circumstances clearly indicating the statement's trustworthiness. Iowa R. Evid. 804(b)(3). We consider a number of factors to determine whether a reasonable person could conclude the contents of the letter could be true, including Way's propensity to tell the truth and his underlying motivations, assurances of his personal knowledge, any reaffirmation or recantation of the statement, Way's availability for cross-examination, and the time between the search and the drafting of the letter. State v. Martinez, 621 N.W.2d 689, 694 (Iowa Ct. App. 2000).
As previously noted, there is nothing to indicate Way actually drafted the letter, and he refused to testify as to the letter or its contents. While it is possible Way may have asserted his privilege against self incrimination because he had in fact done the acts alleged, the district court had no means to test his sincerity or motivations. Nor do the other, external facts indicate the letter's trustworthiness. Although Way may have been in the apartment on prior occasions, there is nothing to show he had been in the apartment on the day of the search. The facts contained within the letter could have been easily obtained and demonstrate no special knowledge on the part of the drafter. Finally, while Slaughter contended he received the letter a month or two after the incident, it did not come to the attention of the police or the court until shortly before trial.
"[T]he inference of trustworthiness from the proffered corroborating circumstances must be strong, not merely allowable." Id. That is not the case here. Given the facts before the district court, we cannot say it abused its discretion in finding insufficient indicia of authentication and trustworthiness to allow admission of the letter and related foundational testimony.
Prior Conviction . Webb argues the court erred in admitting his prior conviction. While he sought exclusion via a motion in limine, the court's ruling in response to the motion was not definitive, and counsel failed to renew objections during trial. As such the issue is not preserved for our review. State v. Tangie, 616 N.W.2d 564, 568-69 (Iowa 2000). However, Webb does posit an alternate argument of counsel's ineffectiveness, based on the failure to object at trial. To succeed in his contention, Webb must prove his attorney's failure to object fell below "an objective standard of reasonableness" and "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). In assessing counsel's performance and its effect on the outcome of the trial, we must necessarily address the admissibility of the evidence. See Love v. State, 543 N.W.2d 621, 623 (Iowa Ct. App. 1995) (noting attorney cannot be deemed ineffective for failing to seek suppression of admissible evidence).
The acts underlying Webb's prior conviction occurred nine months prior to the incident in this case and involved the seizure of marijuana, drug paraphernalia, and a gun from Webb's car and Webb and Moore's apartment. At trial a police officer testified, in regard to the prior incident, that he had come into contact with both Webb and Moore and had seized marijuana, drug paraphernalia, and a gun. He gave the address of Webb and Moore's apartment and stated he charged Webb with possession with intent to deliver. Webb then stipulated he had pled guilty to and was convicted of possession of marijuana with intent to deliver.
A prior conviction may be admissible if relevant and material to a legitimate issue. State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988). Here, Webb's prior conviction was relevant to show whether he possessed marijuana with intent to deliver, as well as his knowledge of the drug's nature and the fact it was in the apartment. See Iowa R. Evid. 404(b). Webb argues the conviction still should have been excluded, as its probative value was substantially outweighed by the danger of unfair prejudice caused by its admission. See Iowa R. Evid. 403.
To make this determination, we apply the standards set forth in State v. Wade, 467 N.W.2d 283, 284-85 (Iowa 1991):
The judge must consider "on the one side, the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes evidence in supporting the issue, and on the other hand, the degree to which the jury will probably be roused by the evidence to overmastering hostility."
Assessing these factors leads to a conclusion the prior conviction was properly admitted.
There is no dispute Webb committed the prior offense, and the similarities in the crimes are sufficient to make the prior conviction highly probative of both intent and knowledge. Cf. State v. Liggins, 524 N.W.2d 181, 188 (Iowa 1997) (finding prior drug-related evidence was not relevant to current murder charge). Moreover, given that Webb was not present in the apartment when the search was conducted and that the drug paraphernalia and other relevant physical evidence were found in common areas of an apartment, the State's need for the prior crimes evidence was substantial. Turning to the other side of the equation, this is not the type of crime likely to arouse a jury's sense of horror or improper instinct to punish, and a limiting instruction was given. See Plaster, 424 N.W.2d at 232 ("It is only in extreme cases that such an instruction is deemed insufficient to nullify the danger of unfair prejudice."). As the evidence was properly admitted, Webb's ineffective assistance of counsel argument is without merit. See State v. Smith, 573 N.W.2d 14, 21 (Iowa 1997) (denying ineffective assistance claim where prior acts relevant to motive, intent, and lack of mistake, and evidence more probative than prejudicial).
Sufficiency of the Evidence . A guilty verdict will be binding on appeal so long as it is supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Substantial evidence is found when, viewing all the evidence in the light most favorable to the State, a rational trier of fact could be convinced of the defendant's guilt beyond a reasonable doubt. Id. Evidence is sufficient to support a verdict if it raises "a fair inference of guilt as to each essential element of the crime," but it "must do more than raise suspicion, speculation or conjecture." State v. LaPointe, 418 N.W.2d 49, 51 (Iowa 1988).
1. Drug Charges . Webb attacks his conviction for possession of marijuana with intent to deliver, and the related tax stamp violation, by arguing there was insufficient evidence to support a finding he knowingly possessed the drugs. See Iowa Code §§ 124.401(1)(d), 453B.3 (outlining the elements of the offenses). Although Webb was not in the apartment when the marijuana was found, it is not necessary for a person be in actual possession of an illegal substance. State v. Atkinson, 620 N.W.2d 1, 3 (Iowa 2000). Constructive possession can be shown by proof of dominion and control over an item Webb knew was present in the apartment and knew was a narcotic substance. Id. If Webb enjoyed the exclusive possession of the apartment, his knowledge of the drug's presence and his ability to exercise control over it could be inferred. Id. However, because he shared the apartment with Moore and Stansbury, his knowledge and ability must be demonstrated by actual proof, such as "circumstances from which a jury might lawfully infer knowledge by the accused of the presence of the substances on the premises." Id. (quoting State v. Reeves, 209 N.W.2d 18, 23 (Iowa 1973)).
Here, a significant quantity of drugs as well as trace material, residue, and drug-related items, were found throughout the apartment in easily accessible, common areas. These facts, combined with the testimony regarding Webb's prior drug conviction, give rise to a lawful inference Webb knew the drugs were in the apartment and that he was able to exercise control over them. Because his prior conviction also demonstrates Webb's knowledge the seized substance was in fact marijuana, there was substantial evidence in the record from which a jury could find Webb guilty of knowingly possessing the drug.
2. Child Endangerment . To find Webb guilty of child endangerment the State had to prove, beyond a reasonable doubt, that Webb had custody or control over Moore's child and that Webb knowingly acted in a manner creating a substantial risk to that child's physical, mental or emotional health or safety. Iowa Code § 726.6(1)(a). In his motion for judgment of acquittal, Webb challenged only the sufficiency of the evidence to support the custody and control element. As the motion did not address whether there was substantial evidence Webb acted in a manner creating substantial risk, he is prevented from raising that issue on appeal. State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996).
Webb again tries to cure the deficiency by arguing counsel was ineffective for failing to address the issue. We need not speak to the State's contention Webb has failed to sufficiently brief this argument, s ee State v. Cooley, 608 N.W.2d 9, 13 (Iowa 2000), as a motion for judgment of acquittal directed at the substantial risk prong would have been unsuccessful. See Crone, 545 N.W.2d at 270-71 (finding counsel not ineffective for failing to include certain grounds within a motion for judgment of acquittal, where argument would have been unsuccessful). Given the evidence regarding the quantity and location of the drugs, drug substances, and drug paraphernalia in the apartment and how such evidence bears on Webb's knowledge of the drug's presence, substantial evidence supports a finding, beyond a reasonable doubt, that Webb acted in such a way as to create a substantial risk to the child's health and safety. Contrary to Webb's assertion, we do not find expert testimony necessary to establish a child could be harmed by having access to drugs and drug paraphernalia.
Because this crime requires the risk be created in regard to a child, there must also be substantial evidence Moore's son was under fourteen years of age. See Iowa Code § 702.5. Webb attempts to argue counsel was ineffective for not addressing this issue as well, as the actual age of the child was never made part of the record. However, testimony the boy appeared to be either a toddler or six to seven years old is sufficient to raise a fair inference he was under fourteen years of age.
Accordingly, Webb's challenge to the sufficiency of the evidence must fail if there is substantial proof of his custody or control over Moore's son. Webb had control over the child if he had "restricting or governing power" over him, and he had custody if he had "not only a power of oversight but also a responsibility for [the child's] care. . . . " State v. Johnson, 528 N.W.2d 638, 641 (Iowa 1995). Here the evidence established Webb and Moore were romantically involved, living in the same apartment with Moore's son, while Moore was pregnant by Webb, and Webb admitted to regularly babysitting for the child. These facts are sufficient to establish Webb's control, if not custody, over Moore's son on or about the time of the incident.
AFFIRMED.