Opinion
No. 4-840 / 04-0072
Filed January 13, 2005
Appeal from the Iowa District Court for Jasper County, Paul R. Huscher, Judge.
Nicholas Joseph White appeals his conviction, following jury trial, for possession of methamphetamine with the intent to deliver. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, Steve Johnson, County Attorney, and Scott Nicholson, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Nicholas Joseph White appeals his conviction, following jury trial, for possession of methamphetamine with the intent to deliver. He contends the State failed to prove beyond a reasonable doubt that he intended to deliver the methamphetamine he possessed. We affirm.
Deputy John Pohlman and Lieutenant Fred Oster are both members of the Jasper County Sheriff's Office and the Mid-Iowa Narcotics Enforcement Drug Task Force. On September 4, 2003, Pohlman and Oster saw White leaving a house they were familiar with because they had been there numerous times in the past for narcotics investigations. The officers followed White a short distance, noticed he was not wearing his seatbelt, and stopped him for failure to wear a seatbelt at approximately 9:00 p.m. During the stop, the officers learned that White's license was under suspension and they placed him under arrest for driving while suspended.
Pohlman and Oster noticed that White was very jittery and constantly moving his feet. The officers removed White's shoes and socks. Inside one sock they found three "baggie corners," also called "bindles," and one bindle inside his other sock. Each baggie contained a substance that appeared to the officers to be methamphetamine. Later testing by the department of criminal investigations (DCI) laboratory confirmed that each bindle contained methamphetamine. Two of the baggies each contained .16 of a gram, one contained .13 of a gram, and the fourth contained .19 of a gram of methamphetamine. When the weight of the plastic baggie was included, each of the bindles weighed approximately one quarter gram. The officers did not find any drug paraphernalia on White's person, in his car, or at the house where he was staying. However, they did find four lithium batteries in a plastic baggie concealed in a vent in the dash of the vehicle White was driving. They also found a funnel containing a white residue in the back of the vehicle.
On September 12, 2003, the State charged White, by trial information, with possession with intent to deliver less than five grams of methamphetamine, in violation of Iowa Code section 124.401(1)(c)(6) (2003). Jury trial began on November 5, 2003. At trial Deputy Pohlman testified that based on his training and experience in narcotics investigations a quarter gram is a common weight for distribution of methamphetamine. He also stated that possession of four evenly weighted quarter-gram bindles of methamphetamine usually indicates an intent to distribute the drugs. Pohlman also stated that based on his experience if a person wanted to buy a gram of methamphetamine for personal use it would be cheaper and they would get more if they bought it as a whole gram in one baggie, as opposed to four quarter grams in four separate baggies. Lieutenant Oster also testified at trial. He stated that based on his experience and training possession of four bindles of a controlled substance is indicative of an intent to distribute or sell.
White testified on his own behalf at trial. He claimed he had been addicted to methamphetamine since he was fourteen years old and that he was using methamphetamines intravenously at the time of his arrest. White testified that he possessed the methamphetamine on the day in question for his own personal use and that he was out looking for a syringe with which to shoot up when he was stopped by the officers. According to White, he had been up for two or three days at the time of his arrest. He had gotten high early that day while fishing, and he wanted to stay up longer and keep the high so he purchased more methamphetamine in the afternoon several hours prior to his arrest. He thought he had purchased a gram, but had apparently been sold somewhat less than a full gram. He testified that he intended to use all of the methamphetamine himself when he found a clean syringe. He also stated that most drug dealers do not use scales anymore because they know it would make it easier to be convicted of possession with intent to deliver if caught.
White made a motion for judgment of acquittal both at the close of the State's evidence and at the conclusion of all of the evidence. In his motion White conceded there was evidence to support the lesser included offense of simple possession, but argued there was insufficient evidence to support a finding he possessed the methamphetamine with the intent to deliver. The court denied both motions. The jury found White guilty as charged. The court sentenced White to an indeterminate ten-year term of incarceration.
White appeals his conviction, contending the State failed to prove beyond a reasonable doubt that he possessed the methamphetamine with the intent to deliver the drug. He does not challenge the sufficiency of the evidence to prove that he possessed the methamphetamine. He argues he possessed the drug solely for his own personal use, and claims the evidence was insufficient to prove that his acknowledged possession was with the intent to deliver.
Our scope of review and many of the standards of review that apply in sufficiency-of-the-evidence challenges are set forth in State v. Webb, 648 N.W.2d 72, 75-76 (Iowa 2002), and need not be repeated here. The following additional standards are applicable as well. Inherent in our standard of review of jury verdicts in criminal cases is the recognition that the jury was free to reject certain evidence, and credit other evidence. State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994). A jury is free to believe or disbelieve any testimony as it chooses and to give as much weight to the evidence as, in its judgment, such evidence should receive. State v. Liggins, 557 N.W.2d 263, 269 (Iowa 1996); State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993). The very function of the jury is to sort out the evidence and place credibility where it belongs. Thornton, 498 N.W.2d at 673. The credibility of witnesses, in particular, is for the jury. Id.
Here, as in most cases dealing with a defendant's intent, the evidence relating to White's intent to deliver was circumstantial. The element of intent is rarely capable of direct proof and must usually be shown by circumstantial evidence. State v. Delay, 320 N.W.2d 831, 835 (Iowa 1982); State v. Salkil, 441 N.W.2d 386, 387-88 (Iowa Ct.App. 1989). However, a verdict can rest on circumstantial evidence alone. State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct.App. 1999). Despite White's argument to the contrary, it is well established that direct and circumstantial evidence are equally probative. Iowa R. App. P. 6.14(6)( p); State v. Knox, 536 N.W.2d 735, 742 (Iowa 1995). "Use of such circumstantial evidence is limited only by the rule that, like direct evidence, it must `raise a fair inference of guilt; it must do more than create speculation, suspicion, or conjecture.'" State v. Clarke, 475 N.W.2d 193, 197 (Iowa 1991) (quoting State v. Blair, 347 N.W.2d 416, 421 (Iowa 1984)). Circumstantial evidence is particularly valuable when proving a mental state like intent which is seldom susceptible to proof by direct evidence. Id. Inferences from circumstantial evidence are a staple of the adversarial fact-finding system. See State v. Schmidt, 588 N.W.2d 416, 418 (Iowa 1998).
We conclude substantial evidence supports the jury's finding that White intended to deliver the methamphetamine he possessed at the time of his arrest. White possessed four plastic baggies or bindles that each weighed approximately .25 grams. The quantity and packaging of a controlled substance may be construed as indicia of an intent to deliver. State v. See, 532 N.W.2d 166, 169 (Iowa Ct.App. 1995). Deputy Pohlman testified that based on his training and experience in narcotics investigation the weight, number, and manner of packaging of the bindles found on White were all consistent with an intent to distribute the methamphetamine rather than an intent to hold the drug for personal use. Pohlman also testified that most people buying a gram for personal use would buy it in a single, one-gram bindle because the person would get more methamphetamine for their money. Based on White's admittedly extensive history of drug use a reasonable factfinder could conclude White would have been aware of such a fact. Lieutenant Oster's testimony also indicated that possession of four bindles such as those White possessed was indicative of an intent to deliver.
White testified at trial and denied any intent to distribute or sell the methamphetamine. He stated that he had purchased the drugs earlier in the day for his own personal use and was out looking for a syringe with which to shoot up when he was pulled over and arrested. However, as set forth above it was the jury's duty to determine the credibility of White's testimony and to believe or disbelieve any or all testimony as it saw fit. See Anderson, 517 N.W.2d at 211; Thornton, 498 N.W.2d at 673. We reiterate that inherent in our review is the principle the jury is free to reject certain evidence and credit other evidence. See State v. Arne, 579 N.W.2d 326, 328 (Iowa 1998). Some of White's testimony could readily be seen as lacking in credibility. Most notably a jury could find it unlikely that a confessed heavy, long-term, intravenous methamphetamine user would not have a syringe with which to shoot up. Based on his testimony that he was an intravenous user and had used earlier that day the jury could reasonably believe that, contrary to his testimony, he in fact had or had access to a syringe. A reasonable jury could thus have chosen to disbelieve White's testimony claiming he intended to use and not distribute any of the methamphetamine in his possession. It could have found the officers' testimony, based on their experience and training, to be more credible.
Furthermore, it was undisputed that no drug paraphernalia was found on White's person, in his vehicle, or at the house where he was staying. The fact White did not possess the paraphernalia necessary to ingest the methamphetamine in the manner he admittedly normally did (i.e., intravenously) is a factor that may reflect whether the drugs were possessed for personal use or distribution. State v. Dinkins, 553 N.W.2d 339, 341 (Iowa Ct.App. 1996).
Viewing all the evidence, but viewing it in the light most favorable to the State, we conclude the record contains substantial evidence sufficient to convince a rational factfinder, beyond a reasonable doubt, that White had the intent to deliver the methamphetamine in his possession and thus to support White's conviction for possession with intent to deliver. Accordingly, the jury's verdict is binding upon us and must be upheld. See Kirchner, 600 N.W.2d at 333-34. The trial court did not err in overruling White's motions for judgment of acquittal.