Opinion
No. 4-220 / 03-1318
April 28, 2004.
Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.
Matthew Arrington appeals from his convictions for possession with intent to deliver a controlled substance and failure to affix a drug tax stamp. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, William Davis, County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Vogel and Mahan, JJ.
Matthew Arrington appeals from his convictions for possession with intent to deliver a controlled substance in violation of Iowa Code section 124.401(1)(b) (2003), Count I, and failure to affix a drug tax stamp in violation of Iowa Code section 453B.12, Count II. We affirm.
I. Background Facts Proceedings
On October 31, 2000, Davenport Police Officer Gregory Wolf responded to a noise complaint at a local apartment complex. Upon arriving, Wolf noticed a group of people gathered around a car parked in an adjacent parking lot. When Wolf shined his spotlight in their direction, the people around the car fled. As Wolf approached the car, he noticed the car had no license plates, a strong odor of marijuana emanating from it, and a person in the back seat who appeared to be hiding from him. Wolf asked the person in the back seat, later identified as Arrington, to step out of the car. His subsequent pat down of Arrington produced 4.5 grams of crack cocaine wrapped in a plastic bag concealed under a Tootsie Roll wrapper.
Arrington was arrested and charged with the foregoing offenses. Following a jury trial, Arrington was convicted on both counts and sentenced to a ten-year indeterminate term of incarceration and a fine of $1000 plus a $125 "Law Enforcement Surcharge" and a $10 DARE surcharge for Count I, and sentenced to a five-year indeterminate term of incarceration, with the mandatory minimum suspended, and ordered to cover the costs of the action plus the $125 "Law Enforcement Surcharge" for Count II. The court ordered the sentences be served concurrently.
On appeal Arrington claims:
I. DISTRICT COURT ERRED IN FAILING TO GRANT ARRINGTON'S MOTION FOR JUDGMENT OF ACQUITTAL BASED ON THE INSUFFICIENCY OF THE EVIDENCE TO SUPPORT HIS CONVICTIONS.
II. ARRINGTON WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL.II. Sufficiency of the Evidence
We review Arrington's challenge to the sufficiency of the evidence for errors at law. State v. Phams, 342 N.W.2d 792, 795 (Iowa 1983). A jury's guilty verdict is binding upon us unless we conclude the record lacks substantial evidence to support such a finding. State v. Bush, 518 N.W.2d 778, 779 (Iowa 1994). Substantial evidence means such evidence as could convince a rational trier of fact the defendant is guilty of the crime charged beyond a reasonable doubt. State v. Taft, 506 N.W.2d 757, 762 (Iowa 1993); State v. Kirchner, 600 N.W.2d 330, 334 (Iowa Ct.App. 1999).
In determining the sufficiency of the evidence, we view the record in a light most favorable to the State. State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct.App. 1998). Direct and circumstantial evidence are equally probative. Kirchner, 600 N.W.2d at 334. While a verdict can rest on circumstantial evidence alone, it must at least raise a fair inference of guilt as to each essential element of the crime. Id.
Arrington argues there was insufficient evidence of his intent to deliver the controlled substance, and insufficient evidence that he was required to affix a drug tax stamp. We disagree.
"Because it is difficult to prove intent by direct evidence, proof of intent 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) (citation omitted). Lieutenant Scott Sievert testified at trial that in his experience, the 4.5 grams of crack cocaine exceeded the amount indicative of personal use. He further testified it is common for a dealer to carry a large "chunk" and break it off into pieces for sale, and that the 4.5 grams has a street value of approximately $450. The sizeable amount, coupled with the lack of paraphernalia to ingest the drug, led Sievert to conclude that Arrington did not possess the crack cocaine for personal use but instead had the intent to deliver.
Officer Wolf testified the crack cocaine found on Arrington's person was the "largest that [he had] ever taken off the street." Moreover, when Wolf responded to the noise complaint at the complex known for high drug activity, he noticed a large gathering of people standing around the car who quickly scattered after he shined his spotlight on them. He testified that dealers often sell drugs from inside their cars to individuals who gather around. There is substantial evidence of Arrington's intent to deliver to support his conviction under Iowa Code section 124.401(b).
Arrington asserts that he did not possess the required ten dosage units as required to commit a tax stamp violation under Iowa Code section 453B.12. Section 453B.12 provides that "a dealer distributing, offering to sell, or possessing taxable substances without affixing the appropriate stamps, labels, or other official indicia is guilty of a Class D felony." A dealer is defined as a person who possesses ten or more dosage units of a controlled substance. Iowa Code § 453B.1(3)(d). A dosage unit "means the unit of measurement in which a substance is dispensed to the ultimate user." Iowa Code § 453B.1(6). Officer Wolf testified that a dosage unit for crack cocaine is 1/10 of a gram. Arrington possessed 4.5 grams of crack cocaine, which according to Wolf's testimony equals forty-five dosage units. There is sufficient evidence of Arrington's failure to affix a drug tax stamp as required by section 453B.12.
III. Ineffective Assistance of Counsel
Arrington also contends his trial counsel was ineffective in failing to file a motion to suppress evidence obtained during Officer Wolf's pat-down search, and in failing to obtain Wolf's deposition before trial. We review claims of ineffective assistance of counsel de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). Ordinarily, we preserve claims of ineffective assistance of counsel raised on direct appeal for postconviction proceedings to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). Because we find the record insufficient to address Arrington's unreasonable stop claim, we preserve it for possible postconviction proceedings. Arrington's request to preserve the issue of whether trial counsel was ineffective for failing to obtain a deposition of Officer Wolf prior to trial is denied. Arrington failed to "identify how competent representation probably would have changed the outcome." Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994).
The district court is affirmed in its entirety.