Opinion
No. 3-007 / 01-1820
Filed February 12, 2003
Appeal from the Iowa District Court for Poweshiek County, James Rielly, Judge.
Defendant appeals from his convictions of possession of methamphetamine with intent to deliver and possession of marijuana with intent to deliver. AFFIRMED.
Robert Conrad, Knoxville, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, and Michael Mahaffey, County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Defendant-appellant, Charles Chilton, appeals from his convictions of possession of methamphetamine with intent to deliver and possession of marijuana with intent to deliver. He claims there was insufficient evidence of intent to deliver and counsel was ineffective in failing to object to expert opinion testimony concerning the ultimate issue to be decided by the finder of fact. We affirm.
Officer Wray saw the defendant walking across a yard about 12:20 a.m. He called to the defendant and asked to speak to him. As the defendant approached, he dropped a dark-colored bag in the snow. The officer retrieved the bag and asked what it contained. The defendant admitted it contained marijuana and said he was on his way to visit his girlfriend, who lived in the house. The defendant was arrested. Examination of the bag revealed it contained two bags of marijuana, totaling about three ounces; three containers of methamphetamine, totaling about 1.5 grams; a lighter; and a glass vial for smoking methamphetamine. The defendant also had over $2,000 in cash.
Following a bench trial, the defendant was convicted of possession with intent to deliver and failure to affix drug stamps. On appeal, he contends the evidence taken as a whole was not "wholly inconsistent with any rational hypotheses of his innocence, and is [not] so convincing as to exclude any reasonable doubt" of his guilt. See State v. Birkestrand, 239 N.W.2d 353, 362 (Iowa 1976) (quoting State v. Boyd, 224 N.W.2d 609, 612 (Iowa 1974) ("When the evidence is circumstantial alone, it must be entirely consistent with defendant's guilt and inconsistent with any rational theory of innocence.")). He argues that, although he had more than a person might normally have for personal use, the various packages were not in amounts commonly used for distribution, the money he had was not an amount indicating he had sold some drugs, and there were no other indicators of distribution such as scales or business records. See Birkestrand, 239 N.W.2d at 362 (quantity, packaging, and scales); State v. Oppedal, 232 N.W.2d 517, 524 (Iowa 1975) (packaging, baggies, and scales); State v. See, 532 N.W.2d 166, 169 (Iowa Ct.App. 1995) (packaging and business records); State v. Ramirez, 485 N.W.2d 857, 860 (Iowa Ct.App. 1992) (numerous saleable portions and large amount of cash).
We review challenges to the sufficiency of the evidence for errors at law. State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000). We uphold a finding of guilt if the verdict is supported by substantial evidence. Id. Substantial evidence is evidence from which a rational finder of fact could find a defendant guilty beyond a reasonable doubt. State v. Maring, 619 N.W.2d 393, 394-95 (Iowa 2000). We review the facts in the light most favorable to the State. State v. Pace, 602 N.W.2d 764, 768 (Iowa 1999). We consider all the evidence, not only the evidence which supports the verdict, and all reasonable inferences which could be derived from the evidence. State v. Rohm, 609 N.W.2d at 509 (Iowa 2000). The fact finder is free to believe or disbelieve any testimony in whole or in part as it chooses and to give weight to the evidence as in its judgment the evidence should receive. See State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993). The fact finder, not the appellate court, is the determiner of credibility. See Maring, 619 N.W.2d at 395.
In the case before us, the defendant had more methamphetamine and marijuana than would reasonably be for personal use. Although the packaging of the marijuana was not in common amounts for distribution, the smaller package contained stems and seeds, commonly added by dealers to increase the weight, but normally removed by users. Two of the methamphetamine packages were near common distribution weights, when the total package is considered. Although the cash in the defendant's possession was not an amount evenly divisible by any normal sale price amount, the separate bundle of cash in his shirt pocket was in an even amount ($2,000).
Taken together, the circumstantial evidence supports the verdict of the court that the defendant had the intent to deliver the drugs.
The defendant also claims his trial counsel was ineffective in failing to object to, and thus preserve for our review, a police officer's expert testimony concerning an ultimate issue to be decided by the fact finder. The State responds that the testimony, taken in context, was admissible and, in any event, did not prejudice the defendant because the court did not rely on it in its decision.
Our review of ineffective assistance claims is the equivalent of de novo review. Pfau v. State, 644 N.W.2d 700, 702 (Iowa Ct.App. 2002). To prevail on a claim of ineffective assistance of counsel, a defendant must prove counsel failed to perform an essential duty and the failure prejudiced the defendant. DeVoss v. State, 648 N.W.2d 56, 64 (Iowa 2002). Concerning prejudice, a defendant must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984)).
We agree with the defendant that portions of the officer's testimony crossed the fine line between proper and improper opinion testimony. See State v. Dinkins, 553 N.W.2d 339, 341-42 (Iowa Ct.App. 1996) (discussing proper and improper opinion testimony at length); Iowa R. Evid. 5.704. Trial counsel's only objection was "asked and answered," which does not preserve the issue for our review. This is a failure of an essential duty, satisfying the first prong of an ineffective assistance claim. However, as the court did not rely on the very limited improper testimony as a basis for its verdict, the defendant cannot demonstrate any prejudice. Consequently, the defendant's ineffective assistance claim must fail.
Having determined substantial evidence supports the verdict of the court and trial counsel was not ineffective, we affirm the defendant's convictions for possession with intent to deliver.