Opinion
No. 4-753 / 03-1767
Filed December 22, 2004
Appeal from the Iowa District Court for Fremont County, J.C. Irvin and James S. Heckerman, Judges.
Keith Moyer appeals from his convictions and sentences for conspiracy to manufacture methamphetamine with intent to deliver, possession of methamphetamine with intent to deliver, possession of anhydrous ammonia with intent to use as a precursor, possession of lithium with intent to use as a precursor, and possession of pseudophedrine with intent to use as a precursor. CONVICTIONS AFFIRMED; SENTENCES VACATED; AND REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, Vicki R. Danley, County Attorney, for appellee.
Heard by Huitink, P.J., and Mahan, Miller, Vaitheswaran, and Eisenhauer, JJ.
Keith Moyer appeals from his convictions and sentences for conspiracy to manufacture five grams or less of methamphetamine with intent to deliver in violation of Iowa Code section 124.401(c)(6) (2003) (lesser included offense of Count I), possession of five grams or less of methamphetamine with intent to deliver in violation of Iowa Code section 124.401(1)(c)(6) (lesser included offense of Count III), possession of anhydrous ammonia with intent to use as a precursor in violation of Iowa Code section 124.401(1)(d) (Count V), possession of lithium with intent to use as a precursor in violation of Iowa Code section 124.401(1)(d) (Count VI), and possession of pseudophedrine with intent to use as a precursor in violation of Iowa Code section 124.401(1)(d) (Count VII). We affirm Moyer's convictions, vacate the sentences, and remand for resentencing.
I. Background Facts Proceedings
On June 24, 2003, the State charged Moyer by trial information with the manufacture of more than five grams of methamphetamine in violation of Iowa Code section 124.401(1)(b)(7) (Count I), prohibited acts in violation of section 124.407 (Count II), Count III, failure to affix a drug tax stamp in violation of section 453b.12 (Count IV), Count V, Count VI, Count VII, possession of ethyl ether as a methamphetamine precursor in violation of section 124.401(4) (Count VIII), possession of marijuana in violation of section 124.401(5) (Count IX), unlawful possession and transportation of anhydrous ammonia in violation of section 124.401(F) (Count X), and possession of drug paraphernalia in violation of section 124.414 (Count XI). The State amended Count I on August 24, 2003, to charge Moyer with conspiracy to manufacture more than five grams of methamphetamine in violation of section 124.401(1)(b)(7). These charges were based, in part on the evidence seized during execution of a search warrant at Moyer's residence and adjoining property. The search warrant was issued on the application of Fremont County Deputy Sheriff Eric Blevins. Blevins's application states:
On 6/14/03 at approx. 0200 hrs, I was on routine patrol in the 2800 block of 240th Ave when I observed a red 83 Ford pickup (Iowa license 331MJF) parked at a field entrance to property owned by Christopher K. Moyer. As I stopped my patrol vehicle, the white male sitting in the driver's seat exited the red Ford and approached another white male who was unlocking a cable covering the entrance. I immediately recognized this individual to be Christopher Moyer. The individual who exited the red Ford was identified as Ralph R. Bell II. Moyer advised that he was unlocking the gate to check his property due to individuals being on said property earlier. I detected a strong smell of anhydrous ammonia emitting from the red Ford. I walked toward the bed of the vehicle and observed that the smell was very strong. I removed a blue tarp covering a small propane tank, which was leaking the anhydrous. Moyer and Bell were both placed under arrest and a search of the red Ford revealed other precursors utilized in the manufacture of methamphetamine. Along with the precursors, three containers were located containing a powder and rock substance believed to be methamphetamine and a digital scale, hypodermic needles, and other paraphernalia. On or about 6/12/03, a confidential informant advised me that he was at 2811 240th Ave, Christopher Moyer residence, on 6/10/03 with another individual and he observed Moyer sell a large quality of methamphetamine to this individual.
The record indicates investigators seized a number of items associated with the manufacture of methamphetamine, including: two thousand-pound anhydrous tanks, methamphetamine powder on top of a mirror, a pill bottle containing a methamphetamine substance, paper towels containing a pink sludge of methamphetamine, fifty-six pseudophedrine pills in a bucket, a coffee grinder containing pseudophedrine residue, empty blister packs of pseudophedrine, a piece of a phone book with an address for Pseudo 60's (a business selling pseudophedrine), twenty-seven lithium batteries, two peeled lithium batteries, a paper bag containing lithium battery casings, empty lithium battery packages, and five punctured cans of starter fluid. Officers found a digital scale, marijuana, and a marijuana pipe in Moyer's home.
Prior to trial Moyer moved to suppress the evidence obtained as the result of this search. He claimed that the search warrant was issued without probable cause for the following reasons:
Probable cause for said warrant was based on hearsay information supplied to the issuing magistrate.
Probable cause is based on the illegal search of Mr. Bell's vehicle.
Considering all of the circumstances set forth in the search warrant affidavit attached hereto as Exhibit "2" there is insufficient information therein for the magistrate to determine the existence of probable cause.
Specifically said information included material hearsay from unnamed person(s) who have not demonstrated adequate veracity of any basis of knowledge from which to establish a fair probability that contraband was present as described in the warrant.
There is no evidence on the Application or Endorsement to support probable cause that any of the articles on the "Property to be Seized" pre-prepared attachment to the Application are on the premises.
There is no evidence stated in the Application or Endorsement to give probable cause to search any vehicle or outbuilding on the property. . . .
In denying Moyer's motion to suppress, the court found:
The Court having considered that application and the material contained therein finds that the magistrate was informed that there was a vehicle, clearly not Mr. Moyer's vehicle. That's shown. Apparently it is Mr. Bell's. He was the driver. But that Mr. Moyer was in the process of unlocking or somehow opening the gate to Mr. Moyer's property for the extensible purpose of the pickup entering that property, that pickup contained anhydrous ammonia and other precursors utilized in the manufacture of methamphetamine. That coupled with the fact that the confidential informant had indicated that three or four days prior to June 14th that he had observed a sale of a large quantity of what he believed to be methamphetamine by Mr. Moyer to another person at Mr. Moyer's residence, all those facts taken together certainly supply probable cause for the issuance of a search warrant concerning the Moyer property, not only the residence, but any other out buildings for evidence of the manufacture or sale of methamphetamine.
At trial Bell testified Moyer and he manufactured methamphetamine together on approximately twenty or thirty occasions. Bell also testified that they manufactured methamphetamine on June 13, 2003, and divided the finished product. He further testified that they had been "cooking day and night" for three days prior to that. Bell additionally testified that when he returned for more anhydrous ammonia later on June 13, Moyer asked him for a ride to retrieve Moyer's vehicle from a pond on Moyer's farm, and that they planned to manufacture more methamphetamine the next morning.
The State's evidence also included testimony from Bell and Officer Bob Davis that, at the time of his arrest, Moyer asked Bell to tell the arresting officers the drugs and precursors belonged to Bell, and Moyer would take care of him with "money or whatever."
Albert Hale, an inmate at the county jail with Moyer, testified that Moyer stated he had been "caught cooking dope." Moyer further stated that he didn't think the State could "make the charges stick" because he was not caught with anything, and because the anhydrous could be explained by his farming operation.
On September 4, 2003, the jury found Moyer guilty of the lesser included offense of Count I (conspiracy to manufacture less than five grams of methamphetamine), the lesser included offense of Count III (possession of five or less grams of methamphetamine with intent to deliver), and Counts V, VI, VII, and VIII. On October 13, 2003, the court granted Moyer's motion in arrest of judgment on Count VIII, and sentenced him to a ten-year term of imprisonment on Count I, a ten-year term of imprisonment for Count III to be served consecutively to the sentence for Count I, and three five-year terms of imprisonment for Counts V, VI, and VII to be served concurrently with each other and consecutively to the sentences imposed for Counts I and III. Moyer appeals his convictions and sentences.
On appeal, Moyer raises the following issues for review:
I. WHETHER THE DISTRICT COURT'S [sic] ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS?
II. WHETHER THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO SUPPORT DEFENDANT'S CONVICTION?
III. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST THAT THE JURY BE ADMONISHED TO DISREGARD IMPROPER EVIDENCE?
IV. WHETHER THE TRIAL COURT ERRED BY FAILING TO STATE REASONS FOR IMPOSING CONSECUTIVE SENTENCES?II. Suppression Issues
On appeal, Moyer challenges the validity of the search warrant, citing the absence of any evidence in Blevin's search warrant application indicating Moyer "was in the truck with Mr. Bell." He argues that without that fact, the allegations made by the confidential informant lack sufficient indicia of a sale to support the magistrate's probable cause findings. Because Moyer did not make this argument below, we decline to consider it for the first time on appeal. See Conner v. State, 362 N.W.2d 449, 457 (Iowa 1985). In the absence of any other challenge to the magistrate's probable cause determination, we limit our consideration to Moyer's alternative claim that trial counsel was ineffective for failing to make the above argument in the suppression proceedings. See State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001) (noting ineffective assistance claim that counsel failed to preserve error may stand as an exception to the general rule of error preservation).
To establish a claim of ineffective assistance of counsel, Moyer has the burden to prove: (1) counsel failed in an essential duty and (2) prejudice resulted therefrom. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001); State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999). In proving the first element, Moyer faces a strong presumption the performance of counsel falls within a wide range of reasonable professional assistance. State v. Hepperle, 530 N.W.2d 735, 739 (Iowa 1995). We will not second guess reasonable trial strategy. State v. Wissing, 528 N.W.2d 561, 564 (Iowa 1995). The second element is satisfied if a reasonable probability exists that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Davis v. State, 520 N.W.2d 319, 321 (Iowa Ct.App. 1994).
An ineffective assistance of counsel claim fails if Moyer fails to establish either element. State v. Query, 594 N.W.2d 438, 445 (Iowa Ct.App. 1999). Both of the elements must be established by a preponderance of the evidence. State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). There is a strong presumption of competence and reasonable professional judgment. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow for full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). However, we will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). "Preserving ineffective assistance of counsel claims that can be resolved on direct appeal wastes time and resources." State v. Truesdell, 679 N.W.2d 611, 616 (Iowa 2004). We find the record adequate to address the issue on direct appeal.
A search warrant may be issued only upon a finding of probable cause by a judge. State v. Beckett, 532 N.W.2d 751, 753 (Iowa 1995). In determining whether probable cause has been established for the issuance of a search warrant, the test is whether a person of reasonable prudence would believe a crime had been committed on the premises to be searched or evidence of a crime could be located there. State v. Bowers, 661 N.W.2d 536, 542 (Iowa 2003). The information presented in the application for the search is far less demanding than the information necessary to sustain a conviction. State v. Wells, 629 N.W.2d 346, 355 (Iowa 2001). The affidavit for probable cause is interpreted with common sense, rather than in a hypertechnical manner. State v. Gogg, 561 N.W.2d 360, 363-64 (Iowa 1997).
The appellate court's job in reviewing a finding of probable cause to search is not to make an independent determination of probable cause, but only to determine whether the issuing magistrate had a substantial basis for concluding probable cause existed. State v. Green, 540 N.W.2d 649, 655 (Iowa 1995). Reviewing courts give great deference to the issuing judge or magistrate's probable cause determination. Id. Doubtful cases are resolved in favor of finding that a search warrant was properly issued. State v. Myers, 570 N.W.2d 70, 73 (Iowa 1997).
As forementioned, Deputy Blevins wrote that Moyer was in the process of unlocking the gate to check on his farm field at 2:00 a.m. It is not unreasonable to infer that Moyer and Bell were together, or that Bell had given Moyer a ride to the field. See Gogg, 561 N.W.2d at 363-64 (stating affidavit for probable cause is interpreted with common sense rather than in a hypertechnical manner). Trial counsel is not ineffective in failing to raise a meritless issue. Greene, 592 N.W.2d at 29.
Even if we were to conclude that trial counsel should have raised the issue of Moyer's presence in Bell's truck, Moyer is unable to show he was prejudiced by that failure. The affidavit shows that Moyer was found only feet away from Bell's truck, which was parked on his property containing the aforementioned items indicative of the manufacture of methamphetamine. These facts, coupled with the informant's observation of Moyer selling a large quantity of methamphetamine on his property only four days earlier provides ample evidence for a person of reasonable prudence to believe methamphetamine could be found on Moyer's property. See Bowers, 661 N.W.2d at 542.
III. Sufficiency of the Evidence
We review sufficiency of the evidence claims for errors at law. Iowa R. App. P. 6.4. A jury's verdict is binding if it is supported by substantial evidence. State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998). Substantial evidence is such evidence as could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct.App. 1999). Direct and circumstantial evidence are equally probative. Iowa R. App. P. 6.14(6)(p).
Moyer argues there was insufficient evidence linking him to the items found in Bell's truck. He believes without this evidence, there is nothing else in the record to corroborate Bell's testimony. We disagree.
"A conviction cannot be had upon the testimony of an accomplice . . . unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense. . . ." Iowa R. Crim. P. 2.21(3). Corroborative evidence may be direct or circumstantial. State v. Vesey, 241 N.W.2d 888, 890 (Iowa 1976). It "need not be strong and need not be entirely consistent with innocence." State v. Dickerson, 313 N.W.2d 526, 529 (Iowa 1981). However, it must support some material part of the accomplice's testimony and tend to connect the accused to the commission of the crime. State v. Brown, 397 N.W.2d 689, 695 (Iowa 1986). Bell's testimony was corroborated in many respects. Bell testified that he received the anhydrous ammonia for manufacturing methamphetamine from Moyer. When the officers executed the search warrant on Moyer's property, they found two, thousand-pound tanks. Bell further explained the manufacturing process and the precursors that he and Moyer utilized in making methamphetamine. His testimony corresponded with items seized on Moyer's property. Moreover, Bell's testimony that Moyer asked him to say the methamphetamine items were his in return for money was confirmed by Officer Davis who overheard the conversation. We conclude substantial evidence of Moyer's conspiracy to manufacture methamphetamine was demonstrated by Bell's testimony and the items found during the search of Moyer's property.
Moyer further argues counsel was ineffective in failing to argue there was insufficient evidence of his intent to deliver because the amount of methamphetamine found on his property was small, and the methamphetamine was not packed for sale or delivery. We also reject this claim.
Because it is difficult to prove intent by direct evidence, proof usually consists of circumstantial evidence and the inferences that can be drawn from that evidence. State v. Adams, 554 N.W.2d 686, 692 (Iowa 1996). As indicated above, Bell testified that he and Moyer manufactured methamphetamine together on approximately twenty to thirty separate occasions, including "cooking day and night" the three days prior to Moyer's arrest. The two would split the finished product. Bell stated the methamphetamine would be packaged "up in 8-balls which is 3.5 grams." When asked whether Moyer intended to sell his share, Bell responded,
I mean, it is weighed up for that purpose. I can't see why you would weigh it up and spend the time weighing it up if you were going to use it. If you were going to use it for self-assumption [sic], why would you weigh it. Who would care, you know.
He further testified that he had purchased the methamphetamine from Moyer "off and on over the period of years. . . ." Among the items found during the search of Moyer's property was a digital scale, and a high quantity of precursors. The circumstantial evidence in the record provides substantial evidence of Moyer's intent to deliver methamphetamine. Moyer's ineffective assistance of counsel claim fails for the same reason. Greene, 592 N.W.2d at 29 (counsel is not ineffective in failing to raise a meritless issue).
We lastly note that Moyer makes a broad assertion in his brief claiming, "The evidence was insufficient to uphold any of the convictions." This argument is waived by his failure to argue and cite authority in support of this claim. Iowa R. App. P. 6.14( c).
IV. Hearsay Testimony
During the State's direct examination of Albert Hale, Hale began to testify about information he learned through conversations with his cousin. Counsel objected, and the court sustained the objection, however, counsel did not request that the court admonish the jury to disregard the testimony. Moyer argues counsel was ineffective by failing to request the admonition.
Without determining whether trial counsel breached an essential duty in failing to request that the jury be admonished to disregard the hearsay evidence, we conclude Moyer is unable to show prejudice based on the overwhelming nature of the evidence earlier recited supporting his convictions. See Reed v. Norris, 195 F.3d 1004, 1006 (8th Cir. 1999) (citing Strickland, 466 U.S. at 697, 104 S. Ct. 2052, 80 L. Ed. 2d at 699-70); see also Greene, 592 N.W.2d at 29(holding the court may affirm a conviction if either a breach of an essential duty or prejudice is not shown).
V. Consecutive Sentences
Moyer also claims, and the State agrees the court gave insufficient reasons for imposing consecutive sentences in this case. Under Iowa Rule of Criminal Procedure 2.23(3)( d), a trial court must state on the record its reasons for selecting a particular sentence. State v. Oliver, 588 N.W.2d 412, 414 (Iowa 1998). A court must also give reasons for its decision to impose consecutive sentences. State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000). A statement may be sufficient, even if terse and succinct, as long as the brevity of the court's statement does not prevent review of the exercise of the trial court's sentencing decision. State v. Johnson, 445 N.W.2d 337, 343 (Iowa 1989); State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct.App. 1995).
During sentencing, the court stated in part:
The Court finds based upon its review of the presentence investigation that the defendant has been on probation three times previously. And the one that concerns the Court most is the one relating to the stalking charges and that period of probation. It appears that more significant consequences needed to be imposed in order for the criminal activity of the defendant to be curbed; and for that reason, the Court will not grant simple probation in these proceedings.
The court gave its reasons for denying Moyer probation for his convictions, but failed to state its reasons for imposing consecutive sentences. We accordingly vacate Moyer's sentences and remand for resentencing.