Opinion
No. 2-791 / 01-1229.
Filed December 11, 2002.
Appeal from the Iowa District Court for Black Hawk County, JON C. FISTER, Judge.
Defendant appeals his conviction for possession of marijuana with intent to deliver. AFFIRMED.
Thomas Frerichs of Frerichs Law Office, P.C., Waterloo, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Jack Lammers, Assistant County Attorney, for appellee.
Considered by VOGEL, P.J., and ZIMMER and HECHT, JJ.
Bradley Aukes appeals from the judgment and sentence entered upon his conviction of possession of marijuana with intent to deliver in violation of Iowa Code section 124.401(d) (1999). He claims several of the district court's evidentiary rulings were erroneous. He also claims the testimony of the State's expert witness invaded the province of the jury and denied him the right to a fair trial. We affirm.
I. Background Facts and Proceedings.
On April 4, 2001, law officers learned that Aukes, who was wanted on an arrest warrant, was residing at a local hotel in Black Hawk County. Two officers went to the hotel and knocked on the defendant's door. Aukes responded that he would come out as soon as he put on some clothes. The officers waited ten or fifteen minutes for Aukes to leave his room. When he failed to do so, Lieutenant Richard Greenlee left the hotel to obtain a search warrant. Approximately an hour later, Aukes exited the hotel room.
Cedar Falls Police Captain Jerry Schroeder searched Aukes and found $2000 in cash, 15.4 grams of marijuana, and zigzag papers. A search of the defendant's room revealed a Cent-O-gram triple beam scale, a large quantity of plastic Ziploc bags, a gallon plastic bag containing what appeared to be marijuana residue, prescription bottles containing marijuana seeds, a false bottom container, and a safe. The officers also observed what appeared to be marijuana residue on, in, and around the bathroom toilet.
The State charged Aukes with possession with intent to deliver marijuana. At trial, the court admitted evidence of Aukes's two prior convictions for possession with intent to deliver. During the testimony of the State's expert witness, Officer Jimmie Schmidt, Aukes moved for mistrial on the basis that Schmidt's testimony was improper opinion evidence. The court denied the motion. The trial court also admitted several exhibits offered by the State over Aukes's objection that they were not relevant. The jury found Aukes guilty of possession with intent to deliver. He appeals.
Aukes raises three issues on appeal. He contends: 1) the admission of his two prior convictions for possession with intent to deliver was in error; 2) the testimony of the State's expert witness invaded the province of the jury and denied him the right to a fair trial; and 3) the court abused its discretion by admitting exhibits that were irrelevant and prejudicial.
II. Prior Criminal Convictions.
A. Scope of Review and Applicable Law. We review a district court's evidentiary rulings for abuse of discretion. State v. Castaneda, 621 N.W.2d 435, 440 (Iowa 2001). We will reverse an evidentiary ruling only upon a showing that the court exercised its discretion on grounds clearly untenable or unreasonable. State v. Axiotis, 569 N.W.2d 813, 815 (Iowa 1997).
Over the defendant's objection, the court admitted his two prior convictions of possession with intent to deliver marijuana in 1998. Pursuant to Iowa Rule of Evidence 5.404(b) (formerly Iowa Rule of Evidence 404(b)), evidence of other crimes is generally inadmissible for the purpose of showing a person acted in conformity therewith. Iowa Rule of Evidence 5.404(b) provides:
The court excluded Aukes's 1988 conviction for marijuana manufacture because it lacked temporal proximity and relevance.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Under rule 5.404(b), the key is "whether the challenged evidence is relevant and material to some legitimate issue other than a general propensity to commit wrongful acts." State v. Plaster, 424 N.W.2d 226, 229 (Iowa 1988). If the evidence meets this test, it is prima facie admissible, even though it has a tendency to demonstrate the defendant's bad character. See Castaneda, 621 N.W.2d at 440.
In determining whether the challenged evidence is admissible, the court must employ a two-step analysis. Id. The court must determine (1) whether the evidence is relevant, and if so, (2) whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Id. Relevant evidence is that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Iowa R. Evid. 5.401. In balancing the probative value versus the prejudicial effect, the court examines the need for the evidence in light of the issues and other evidence available, the convincingness of the evidence that the other crime was committed, the strength or weakness of the other-crimes evidence in supporting the issue, and the degree to which the jury will probably be roused by the evidence to overmastering hostility. State v. Wade, 467 N.W.2d 283, 284-85 (Iowa 1991).
B. Analysis. The court found Aukes's 1998 convictions relevant to intent, and possibly motive, and in addition, concluded the probative value of the evidence outweighed any prejudicial effect. Aukes first contends the prior crimes evidence was irrelevant. We disagree.
The jury was required to determine whether the defendant was guilty of possessing marijuana with intent to deliver or the lesser offense of possession. In several drug prosecution cases, our supreme court has held that prior crimes are relevant to the issue of intent. Id. at 284-85 (prior arrest for possession with intent to deliver admissible to show intent, knowledge, absence of mistake or accident); State v. Grosvenor, 402 N.W.2d 402, 405-06 (Iowa 1987) (prior acts of delivery of drugs admissible to show intent); State v. Kern, 392 N.W.2d 134, 136-37 (Iowa 1986) (prior delivery of controlled substance admitted to show intent); State v. Mendiola, 360 N.W.2d 780, 782 (Iowa 1985) (prior conviction of possession with intent to deliver admissible to show knowledge in prosecution for same offense).
We agree with the district court that Aukes's prior convictions were relevant to his state of mind. The prior convictions of the same crime made the existence of his intent to deliver the marijuana he possessed more probable than it would have been without the evidence. We now turn to the defendant's argument that the probative value of the other-crimes evidence is substantially outweighed by the danger of unfair prejudice.
We recognize the inherent prejudicial effect of admitting other-crimes evidence, but we agree with the district court that the evidence in this case was not unfairly prejudicial in light of its probative value. See Plaster, 424 N.W.2d at 231. The evidence of the other crimes evidence was limited. The State elicited no details about the other charges that would be prejudicial to the defendant. In addition, the district court limited the possibility the jury would use the other-crimes evidence improperly by providing the jury with a cautionary instruction. We cannot assume the jury failed to follow the court's instruction. See id. at 232.
We conclude the district court did not abuse its discretion in admitting evidence of the defendant's two previous convictions for possession with intent to deliver. The evidence was more probative than prejudicial.
III. State's Expert Witness.
The State called Waterloo Police Officer, Jimmie Schmidt, as both a fact witness and an expert witness. Aukes first contends Schmidt's testimony exceeded the scope of permissible opinion evidence.
A properly qualified witness may testify to the customs and practices of those who use or deal in narcotics. State v. Olsen, 315 N.W.2d 1, 7 (Iowa 1982). However, an expert may not offer an opinion on the defendant's guilt. Id. Defendant complains that Schmidt's testimony crossed the line between proper and improper expert opinion. Although Aukes does not specifically reference any factual basis in the record for this claim, our review of the record reveals a line of testimony most likely to be the basis of his claim. The State asked Schmidt if, based on his observations of the items seized and the evidence, he had an opinion as to whether the scenario was consistent with possession solely or possession with intent. Schmidt answered that he did and stated, "My opinion is that Bradley Aukes was involved in the. . . ." Defendant objected prior to completion of the answer and moved for mistrial. The court sustained his objection and overruled his motion. The court then admonished the jury as follows, "The answer wasn't responsive to the question. The officer is not qualified to testify as to the guilt or innocence of this or any other particular defendant. The answer is stricken from the record and the jury ought to disregard it." This instruction limited any potential prejudice. In addition, Aukes's mid-sentence objection precluded Schmidt from ever offering improper expert opinion. We conclude Aukes suffered no prejudice.
Aukes next contends that Schmidt's general uncooperativeness constituted a violation of his right to a fair trial. To the extent this issue implicates defendant's constitutional rights, our review is de novo. Taylor v. State, 352 N.W.2d 683, 684 (Iowa 1984). In support of his contention, Aukes cites to a portion of Schmidt's cross-examination. During the cross-examination, Schmidt testified unresponsively to a line of questioning. At counsel's request, the trial court intervened and Schmidt then answered the questions posed.
Upon review of the record, we conclude the defendant has failed to demonstrate that he was prejudiced or denied a fair trial by Schmidt's alleged recalcitrance. The district court addressed the problems perceived by Aukes's trial counsel by admonishing Schmidt to answer the questions he was asked. In addition, the district court gave specific instructions to the jury at the conclusion of the trial to aid it in deciding what testimony to believe. Ultimately, it was up to the jury to observe Schmidt and give his testimony its proper weight. See State v. Hawkins, 519 N.W.2d 103, 104 (Iowa Ct.App. 1994). We find no merit in this assignment of error.
IV. Admissibility of Other Evidence.
A. Scope of Review and Applicable Law. Aukes also challenges the admissibility of certain evidence introduced by the State. We review this assignment of error for abuse of discretion. State v. Rodriguez, 636 N.W.2d 234, 239 (Iowa 2001).
As we have mentioned, irrelevant evidence is inadmissible. Iowa R. Evid. 5.402. Evidence is relevant if a reasonable person might believe the probability of the truth of a consequential fact to be different if the person knew of the challenged evidence. State v. Brown, 569 N.W.2d 113, 116 (Iowa 1997). Relevant evidence may be excluded when its probative value is substantially outweighed by unfair prejudice. Iowa R. Evid. 5.403. Probative value gauges the strength and force of the evidence's tendency to make any consequential fact more or less probable. State v. Most, 578 N.W.2d 250, 253 (Iowa Ct.App. 1998). Unfair prejudice is an undue tendency to suggest decisions on an improper basis. Plaster, 424 N.W.2d at 231. Evidence of this sort may appeal to the jury's sympathies, arouse its horrors, or provoke its instinct to punish. State v. Hardy, 492 N.W.2d 230, 234 (Iowa Ct.App. 1992) (citing J. Weinstein M. Berger, Weinstein's Evidence, 404[03] at 403-33-40 (evidence that may cause a jury to base its decision on something other than the established propositions in the case is prejudicial)).
B. Analysis. Over Aukes's objection, the court admitted the following five exhibits into evidence: Exhibit 20, a card from a rental company in Montego Bay, Jamaica; Exhibit 12, a composition book; Exhibit 4, his passport; Exhibit 8, $750 in Jamaican currency and three $25 Jamaican stamps; and Exhibit 3, a certificate of title of a vehicle Aukes owns. Aukes maintains these exhibits are irrelevant and prejudicial.
Exhibit 12, contained evidence of record keeping consistent with drug dealing. The book showed dates and included the notation, "2-26, weed, 200.00." This evidence is clearly relevant. Exhibit 3 is also relevant; it shows ownership of a vehicle that contained a large collection of High Times magazines. The magazines made it more probable that Aukes was more than a casual user of marijuana. See United States v. Bowling, 900 F.2d 926, 934-35 (6th Cir. 1990) (finding admission of High Times magazines relevant and not unfairly prejudicial in prosecution of various marijuana offenses), cert. denied, 498 U.S. 837, 111 S.Ct. 109, 112 L.Ed.2d 79 (1990).
We now turn our attention to the card from the Jamaican rental company, Aukes's passport, and the Jamaican currency and stamps, Exhibits 20, 4, and 8, respectively. The State suggests this evidence is relevant to the issue of whether Aukes possessed the marijuana with intent to deliver. Aukes argues that the evidence is irrelevant. The jury heard evidence that Jamaica was a known point of origin for marijuana. The evidence in issue connects Aukes to Jamaica. The passport indicates he was in Jamaica less than one month prior to his arrest. The cash, stamps, and rental card also establish his connection to Jamaica. Although the strength of this evidence is perhaps less obvious that some of the other evidence recovered by law enforcement officers from Aukes's person and his room, we find no abuse of discretion in the trial court's decision to admit it. We conclude the exhibits were not unfairly prejudicial.