Summary
In White, even though "the drugs recovered were admitted as an exhibit at trial and the arresting officer testified the methamphetamine was in substantially the same condition as when he found it," we found the State's evidence was lacking.
Summary of this case from State v. BokemeyerOpinion
No. 2-366 / 01-1444
Filed September 11, 2002
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge.
Gary White appeals his convictions of possession of a controlled substance with intent to deliver and failure to possess a drug tax stamp. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, John P. Sarcone, County Attorney, and Robert T. DiBlasi, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Gary Dean White challenges the sufficiency of the evidence to support his conviction for failure to affix a drug tax stamp. He also argues the trial court gave insufficient reasons for imposing consecutive sentences. Finally, White contends he was denied effective assistance of counsel. We find insufficient evidence exists to support the drug tax stamp conviction. We affirm White's conviction for possession of methamphetamine with intent to deliver and preserve his ineffective assistance of counsel claims for possible postconviction relief proceedings. Our reversal renders the consecutive sentencing issue moot. We, affirm in part, reverse in part, and remand.
I. Background Facts and Proceedings .
In the early morning hours of February 6, 2001, law enforcement officers stopped a vehicle White was driving without using headlights. Lisa Giles sat in the front passenger seat and Angel Debrouse sat directly behind her. Officers arrested White on an outstanding warrant, ordered the two female passengers out of the vehicle, and searched the car.
During the search, officers discovered an open container of alcohol in the vehicle and also a small package of methamphetamine on the passenger side floor of the backseat. Additionally, officers discovered a jacket near or draped over the driver's seat. The jacket contained a substantial amount of methamphetamine, a scale, pseudoephedrine pills, and documents belonging to White. Officers did not seize the documents belonging to White as evidence. An officer also found $1218 in cash on White.
On March 20, 2001, the State filed a trial information charging White with possession of a controlled substance with intent to deliver in violation of Iowa Code section 124.401(1)(b)(7) (1999) (count I) and failure to affix a drug tax stamp in violation of Iowa Code sections 453B.3 and 453B.12 (count II). The State later amended the trial information to charge White as a second or subsequent offender and as a habitual offender.
White's jury trial commenced on June 25, 2001. The court denied his motions for a directed verdict and for judgment of acquittal. The jury found White guilty of both counts. White stipulated to his status as a second or subsequent offender and a habitual offender. The court sentenced White to an indeterminate seventy-five-year term of imprisonment for count I and a fifteen-year indeterminate term for count II. The court ordered these sentences to run consecutively.
White appeals. He contends there was insufficient evidence to support his conviction of failure to affix a drug tax stamp. In addition, he claims the court erred in not providing a sufficient basis for the consecutive sentences. Finally, White alleges that he received ineffective assistance of counsel. He does not otherwise challenge his conviction for possession with intent to deliver.
II. Discussion . A. Drug Tax Stamp Conviction .
The State argues White failed to preserve error on this issue. We disagree. Generally, a sufficiency of the evidence claim cannot be raised for the first time on appeal. State v. Grosvenor, 402 N.W.2d 402, 406 (Iowa 1987); see also State v. Abbas, 561 N.W.2d 72, 74 (Iowa 1997). A motion for judgment of acquittal is the means to challenge the sufficiency of the evidence. Iowa R. Crim. P. 2.19(8)(a); State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). White moved for judgment of acquittal arguing the State failed to prove the lack of a drug tax stamp. Thus, error was preserved.
We review sufficiency of the evidence challenges for correction of errors at law. State v. Chang, 587 N.W.2d 459, 461-62 (Iowa 1998). In our review of a ruling on a motion for judgment of acquittal, we view the evidence in the light most favorable to the State. State v. Boleyn, 547 N.W.2d 202, 204 (Iowa 1996). We accept any legitimate inferences that may reasonably be deduced from the evidence. Id. We uphold the denial of a motion for judgment of acquittal if there is substantial evidence in the record supporting the charges. Id. Evidence is substantial if a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998). A verdict can rest on circumstantial evidence alone. State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct.App. 1999). However, evidence which merely raises suspicion, speculation, or conjecture is insufficient. Id. In making this assessment, we consider all the evidence, not just evidence supporting the verdict. Id.
The State must produce substantial evidence on each of the essential elements of the crime charged. State v. Limbrecht, 600 N.W.2d 316, 317 (Iowa 1999). The elements of the drug tax stamp offense are: (1) defendant is a dealer, (2) who unlawfully possesses, distributes or offers to sell, (3) a taxable substance, (4) without affixing a stamp, label, or other official indicia evidencing that the required tax has been paid. See Iowa Code § 453B.3; State v. White, 545 N.W.2d 552, 555 (Iowa 1996).
White points out the evidentiary record is completely silent regarding the drug tax stamp issue. The State responds by noting that the drugs recovered were admitted as an exhibit at trial and the arresting officer testified the methamphetamine was in substantially the same condition as when he found it. The State suggests the jury could reasonably have concluded that the defendant did not possess a tax stamp.
We conclude testimony concerning the condition of the drugs, without more, does not suffice to prove the charge of failure to affix a drug tax stamp by proof beyond a reasonable doubt. The State acknowledges that none of its witnesses testified regarding the presence or absence of a drug tax stamp at anytime during trial. Moreover, the jury was not told or shown what a drug tax stamp looks like. The State asked the arresting officer if the methamphetamine seized was in the same condition as when he found it, but did not ask whether it was in the same container or whether a drug tax stamp was ever present. The first time a drug tax stamp is mentioned after opening statements at trial is during the State's closing argument. We conclude the trial court should have granted White's motion for judgment of acquittal as to count II. We reverse White's conviction for failing to affix a drug tax stamp.
B. Ineffective Assistance of Counsel .
White contends trial counsel provided ineffective assistance of counsel in two respects. First, White alleges trial counsel failed to advise him regarding the plea offer and failed to communicate his acceptance of the plea offer before the deadline. Second, White argues trial counsel failed to investigate his case with respect to the possible exonerating testimony of Lisa Giles. We preserve White's claims for postconviction relief proceedings to further develop the record and give trial counsel a chance to explain his decisions. See State v. Shortridge, 589 N.W.2d 76, 84 (Iowa Ct.App. 1998).
III. Conclusion .
We affirm White's conviction for possession with intent to deliver methamphetamine. We reverse his conviction for failure to affix a drug stamp. White's ineffective assistance of counsel claims are preserved for possible postconviction relief proceedings. The reversal of the drug tax stamp conviction renders White's challenge to consecutive sentencing moot. We remand to the district court for dismissal of count II.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.