Opinion
No. 5-387 / 04-0665
Filed July 13, 2005
Appeal from the Iowa District Court for Sioux County, James D. Scott, Judge.
Danny Frerichs appeals his convictions for possession of methamphetamine with intent to deliver, failure to affix a tax stamp, and operating while intoxicated. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda Hines and Kevin Cmelik, Assistant Attorneys General, Melissa O'Rourke, County Attorney, and Coleman McAllister, Assistant County Attorney, for appellee.
Heard by Vogel, P.J., and Miller and Hecht, JJ.
Danny Frerichs appeals his convictions for possession of methamphetamine with intent to deliver, failure to affix a drug tax stamp, and operating while intoxicated (OWI). We affirm.
I. Background Facts and Proceedings.
Around midnight on March 27, 2003, Trooper Dave Driesen observed a vehicle traveling sixty-six miles per hour in a fifty-five mile-per-hour zone. Driesen turned around to follow the vehicle and noticed that the car's license plate was not illuminated. Driesen then activated his lights and stopped the car, in which he found Danny Frerichs was the driver and Michael Mann the passenger.
Driesen escorted Frerichs to his patrol car, intending to issue a warning citation for speeding. As they conversed, Driesen noticed Frerichs growing nervous and overly talkative. Frerichs was stuttering, mixing up his words, and his hands were in constant motion. Driesen also observed Frerichs to have dilated pupils, which indicated to him that Frerichs was under the influence of a stimulant, likely methamphetamine.
Frerichs informed Driesen that he lived in Spirit Lake and was coming from somewhere south of Sioux City after having spent all day at a friend's house. Driesen then talked to Mann, who gave a different story. Driesen ran a warrant check which revealed that Mann had several outstanding warrants for his arrest in Emmett County. As he ordered Mann to step out of the car, Driesen observed drug paraphernalia, including two glass pipes, in plain view in the car. Driesen's subsequent search of the car turned up 250 grams of methamphetamine in a coffee cup, glass tubes, an electronic organizer, a multi-tool with burnt residue, 100 baggies, two small metal pipes, and a map highlighting the route from Spirit Lake, where Frerichs lived, to Columbus, Nebraska. Mann claimed ownership of the drugs and drug paraphernalia.
Based on the discoveries made in the car, a warrant was obtained for the search of Frerichs' home in Spirit Lake. There, officers discovered several electronic organizers, a web camera set up to view the outside of the house, a police scanner, measuring spoons with methamphetamine residue, a set of scales, plastic baggies, two plastic bag heat sealers and glass tubes.
Based on this evidence, the State charged Frerichs with possession of methamphetamine with intent to deliver, failure to affix a drug tax stamp, and OWI, in violation of Iowa Code sections 124.401(1)(b), 124.411, 453B.1, 453B.3, 453B.12, and 321J.2 (2001). Following a trial, the jury found him guilty as charged. Frerichs appeals.
We caution counsel for the appellant to comply with Iowa Rule of Appellate Procedure 6.14(1)(f) regarding the content of briefs, which specifically requires the argument section "contain in separately numbered divisions corresponding to the separately stated issues the contentions of appellant with respect to the issues presented and the reasons therefore, with citations to the authorities relied on and to the pertinent parts of the record. . . ." The brief in this case lumps various arguments together under generally-stated argument divisions, cites few facts from the record, lacks citation to authority in places, and makes non-specific error preservation assertions.
II. Admission of Evidence Seized in Spirit Lake Home.
Frerichs first maintains the district court improperly admitted the evidence discovered in the search of his Spirit Lake home. As noted above, pursuant to a warrant police seized a number of items from Frerichs' home. On appeal, he claims this evidence was inadmissible pursuant to Iowa Rules of Evidence 5.403 and 5.404( b). On appellate review of such an evidentiary ruling we grant the district court wide latitude regarding admissibility and will disturb the court's ruling only upon finding an abuse of discretion. State v. Buller, 517 N.W.2d 711, 712 (Iowa 1994).
Rule 5.403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Rule 5.404( b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of the person, but it may be admissible for such purposes as proof of motive, opportunity, intent, preparation, knowledge, or identity. While we find it questionable whether the 5.404( b) issue is preserved for appellate review, we nonetheless address it, agreeing with the State's position that "[rule] 5.404( b) lingers in the background of the arguments made for the admission or exclusion of certain evidence. . . ."
While Frerichs on appeal characterizes the Spirit Lake evidence as evidence of "other crimes" or "prior bad acts," we believe it is more appropriately considered as substantive evidence of the instant charge of possession of methamphetamine with intent to deliver. Together, the items found in the vehicle and the home, comprised an extensive list of drugs and drug paraphernalia commonly associated with drug possession, use, sale, and delivery. The district court's ruling determined the items found in the search of the home were "so related in time and space as to form an integral part of the crime charged. It is probative to the issue of Defendant's knowledge and intent. . . ." We agree with this assessment.
In addition, possession with intent to deliver is a specific intent crime. See State v. Butler, 505 N.W.2d 806, 808 (1993). Because specific intent is seldom capable of direct proof, it may be shown by circumstantial evidence and the reasonable inferences drawn from that evidence. State v. Casady, 491 N.W.2d 782, 786 (Iowa 1992). Here, the evidence seized from the home provided substantial circumstantial evidence as to Frerichs' intent of having transported methamphetamine, then repackaging the drug for delivery. The evidence therefore did not violate either rule 5.403 or 5.404( b), as it was more probative than prejudicial, and provided proof on the required finding of specific intent. Therefore, we conclude the court properly admitted into evidence the items seized during the search of Frerichs' home.
III. Admission of Methamphetamine Recipe.
Police seized a document, located in Frerichs' house, which purported to be a recipe for the manufacture of methamphetamine. The district court ruled the recipe admissible, apparently agreeing with the State that the recipe was not offered to prove the truth of the matter asserted, and thus was not hearsay. Frerichs appeals from this ruling. We review this ruling for the correction of errors at law. See State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998).
We conclude Frerichs has not preserved for appellate review the Confrontation Clause argument he now advances, as this issue was neither raised nor addressed below. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).
We agree with the district court the methamphetamine recipe was not inadmissible hearsay. The significance of the recipe rested not in the fact it would actually yield methamphetamine, but rather in the fact that something purporting to be a methamphetamine recipe was discovered in a home in which Frerichs resided. The evidence thus tended to support the assertion that Frerichs was familiar with methamphetamine so as to establish his knowledge that the substance found in his car was methamphetamine. Therefore, because the evidence was not offered for the truth of the matter asserted therein, but rather to infer Frerichs' knowledge, it was not hearsay. Iowa R. Evid. 5.801( c) ("[Hearsay] is a statement other than one made by the declarant while testifying at trial . . . offered in evidence to prove the truth of the matter asserted."); State v. Dullard, 668 N.W.2d 585, 589 (Iowa 2003).
IV. Sufficiency of the Evidence.
Frerichs next claims the evidence is insufficient to support any of his three convictions. We employ the familiar substantial evidence test in determining whether the evidence is sufficient to support a conviction. See Iowa R. App. P. 6.14(6)( a); State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). Substantial evidence is that from which a rational trier of fact could find a defendant guilty beyond a reasonable doubt. Thomas, 561 N.W.2d at 39. The evidence is viewed in the light most favorable to the State, including all legitimate inferences that reasonably may be deduced from the record. Id. A. Possession of Methamphetamine with Intent to Deliver.
Frerichs argues the "evidence was inadequate to show that he possessed, knew the nature of, or intended to deliver the contraband in question." He couches this claim in terms of failure to prove constructive possession, in that the incriminating items were seized in a car in which he was one of two occupants.
Constructive possession occurs when the defendant has knowledge of the presence of the controlled substance and has the authority or right to maintain control of it. State v. Bash, 670 N.W.2d 135, 138 (Iowa 2003). Because Frerichs did not have exclusive possession of the place in which the drugs were found, possession may not be inferred, but must be established by proof. State v. Webb, 648 N.W.2d 72, 81 (Iowa 2002). When the "premises" involve a motor vehicle, a court may consider these additional factors: (1) was the contraband in plain view, (2) was it with the accused's personal effects, (3) was it found on the same side of the car seat as the accused or immediately next to him, (4) was the accused the owner of the vehicle, and (5) was there suspicious activity by the accused. State v. Kemp, 688 N.W.2d 785, 789 (Iowa 2004)
First, while not conclusive, it is significant that Frerichs owned and was driving the car in which the drugs and drug paraphernalia were discovered, some of it in plain sight. See State v. Carter, 696 N.W.2d 31, ___ (Iowa 2005) (affirming a finding of constructive possession where defendant was owner, but not driver, of vehicle). Second, Trooper Driesen testified as to Frerichs' suspicious activity during their encounter, in particular his nervousness, uncertainty in how to answer simple questions, physical agitation, and being in constant motion, lead Driesen to conclude Frerichs was high on a stimulant, likely methamphetamine. With evidence of usage found in the vehicle coupled with Frerichs' suspicious mannerisms, it would be logical for the jury to conclude Frerichs possessed at least some of the drugs found in the vehicle. Although Mann claimed ownership of the drugs and drug paraphernalia, he was vague about the location of the many items scattered throughout the vehicle, including the items found in a cigarette tin, suggesting that Frerichs, and not Mann, possessed at least some of the items. Taken together, these facts implied Frerichs' "guilty knowledge." State v. Henderson, 696 N.W.2d 5, ___ (Iowa 2005) (affirming a finding of constructive possession based, in part, on defendant's reaction to officers, discovery of items associated with drug use in defendant's home, and quantity of drugs). Additionally, the evidence discovered in Frerichs' home provides evidence relevant to his knowledge of the drugs and of the other items seized in his vehicle. This evidence supports the jury's finding that Frerichs had the "authority or right to exercise dominion and control over the contraband found in" his vehicle. Id. at ___.
Next, Frerichs summarily asserts there was insufficient evidence to support the intent-to-deliver prong of the possession charge. Trooper Driesen testified that the amount of methamphetamine found in the car was much more than an amount ordinarily possessed for personal use. In addition, he testified that the scales, baggies and the other items found would, in the drug trafficking world, be used for re-packaging the methamphetamine for delivery. Taken together, there is sufficient evidence to support intent to deliver.
B. Failure to Affix a Drug Tax Stamp.
Frerichs next asserts there was no evidence that a drug tax stamp had not been purchased or affixed to the methamphetamine. He faults the State for not having called a witness from the Iowa Department of Revenue and Finance to testify on this point. While the State did not directly address this assertion, there is substantial evidence in the record from Trooper Driesen that no drug tax stamp was affixed to the methamphetamine.
C. Operating While Intoxicated.
Frerichs declined to perform field sobriety tests or to provide a urine sample to detect whether he was operating under the influence of a drug. Trooper Driesen, as a "drug recognition officer," testified that he believed Frerichs to be under the influence generally based on his fourteen years of experience as a peace officer, and specifically due to Frerichs' "inability to keep his hands still, his overly nervous state and being overly talkative, the dilated pupils and the actual locating of methamphetamine in the vehicle." In addition, Driesen noted the vehicle contained at least one pipe that contained residue and appeared to have been used to ingest methamphetamine. We believe this constitutes substantial evidence that Frerichs was operating a motor vehicle "while any amount of a controlled substance is present. . . ." Iowa Code § 321J.2(1)(c).
V. Ineffective Assistance of Counsel.
Because a claim of ineffective assistance of counsel implicates constitutional rights, our review is de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999). To establish an ineffective assistance of counsel claim, the defendant must show (1) counsel failed to perform an essential duty, and (2) this failure resulted in prejudice. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999).
A. "Innocence" Instruction.
Frerichs first maintains trial counsel provided ineffective assistance in failing to object to certain jury instructions, which he contends improperly instructed the jury to find him either guilty or innocent, rather than guilty or not guilty. While "not guilty" is the preferred language, we conclude counsel breached no duty in failing to raise this clearly meritless issue. See State v. Tubbs, 690 N.W.2d 911, 916 (Iowa 2005) ("summarily" rejecting same claim).
We note that despite the wealth of authority contrary to this position, appellant's brief cites to none of that authority. See Tubbs, 690 N.W.2d at 916; State v. Fintel, 689 N.W.2d 95, 105 (Iowa 2004); State v. Langlet, 283 N.W.2d 330, 337 (Iowa 1979). This arguably runs afoul of Disciplinary Rule 7-106(B), which was in effect at the time the briefs in the case were filed, and which provided that "In presenting a matter to a tribunal, a lawyer shall disclose . . . [l]egal authority in the controlling jurisdiction known to be directly adverse to the position of a client. . . ." Particularly troubling is that both Tubbs and Fintel, in addition to a number of unpublished cases, were argued by the same counsel as represents the appellant here. Certainly, counsel must have been aware of this precedent.
B. Testimony Concerning Amount of Drug.
Trooper Driesen testified that the amount of methamphetamine he discovered in Frerichs' vehicle was the largest ever seized in the approximately 1000 drug arrests in which he had been involved. Frerichs contends on appeal this evidence was irrelevant and highly prejudicial. As the State notes, it had the burden to prove not just possession for personal use but possession with intent to deliver. See Iowa Code § 124.401(1)(b). The enormous quantity of drugs discovered in Frerichs' vehicle is persuasive evidence of Frerichs' intentions and is more probative than prejudicial. As noted previously, according to Driesen's testimony, this amount was well beyond what would be considered a personal use amount. Because the quantity of methamphetamine seized was both relevant and necessary in proving the possession with intent to deliver charge, counsel was under no duty to object to this testimony.
C. Chemical Testing.
Frerichs urges counsel should have objected to the relevance of the testimony regarding his refusal to submit to chemical testing. In particular, he asserts that because the request for a urine sample was not made until more than two hours after he was arrested, any test result would have been inadmissible. However, the two-hour time period is only relevant to revocation of a person's driver's license. See Iowa Code § 321J.6(2) (providing that a license shall not be revoked if a test is not offered within two hours after the arrest). Therefore, we reject this contention. See State v. Kjos, 524 N.W.2d 195, 196 (Iowa 1994) (holding that a chemical test is not inadmissible in the criminal case merely because the test is offered more than two hours after the arrest).
Frerichs alternatively claims counsel should have requested Uniform Jury Instruction 2500.4, which informs jurors that an alcohol concentration sample drawn within two hours of the arrest is presumed to equal the result taken at the time of the person's operation of the vehicle. Specifically he argues "this instruction would have allowed counsel to argue that the evidence of [his] test refusal was meaningless." Because counsel could have argued the weight which should be given to a delayed test result as well as the legitimacy of Frerichs' test refusal regardless of whether this instruction was given, we conclude counsel breached no duty in failing to request this instruction.
VI. Motion to Suppress.
Frerichs asserts the evidence seized as a result of the search of both his vehicle and his home should have been suppressed. On our de novo review, State v. Swaim, 412 N.W.2d 568, 570 (Iowa 1987), we disagree on both counts. Upon discovering Mann was wanted on several outstanding warrants, the officer placed him under arrest. The subsequent search of the vehicle was thus justified as a search incident to Mann's arrest. See New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 2864, 69 L. Ed. 2d 768, 775 (1981) (holding the warrantless search of a vehicle's passenger compartment is valid so long as it is a "contemporaneous incident" to the lawful arrest of a vehicle "occupant"); State v. Griffin, 691 N.W.2d 734, 737 (Iowa 2005) (holding a search incident to arrest is justified by mere fact of arrest).
Frerichs contends the officer had no basis for arresting Mann since his warrants were issued in a "non-contiguous" county. He provides no support for this proposition, and we find it to be without merit.
We further conclude the search of Frerichs' Spirit Lake house was justified. In analyzing this question, we apply the following test for determining the existence of probable cause: whether a person of reasonable prudence would believe a crime was committed on the premises to be searched or evidence of a crime could be located there. State v. Sykes, 412 N.W.2d 578, 583 (Iowa 1987). We are obliged to give deference to the magistrate's finding. State v. Bishop, 387 N.W.2d 554, 557 (Iowa 1986). Due to the preference for warrants, any doubts are accordingly resolved in favor of their validity. State v. Weir, 414 N.W.2d 327, 330 (Iowa 1987).
Here, Frerichs was arrested for possession of methamphetamine with intent to deliver, based on the discovery of drugs and a variety of other items in his vehicle. Significant among those items was a map detailing and highlighting the route to Frerichs's residence, strongly suggesting that Frerichs and Mann were headed to Frerichs' residence with the methamphetamine. This provided the crucial link or nexus between Trooper Driesen's discoveries in the vehicle, and the probable cause to search Frerichs' home. See State v. Davis, 679 N.W.2d 651, 655-56 (Iowa 2004) (noting that an issuing judge must determine whether a "nexus between criminal activity, the things to be seized and the place to be searched" has been reasonably shown). We conclude the search of the Spirit Lake home was justified and the motion to suppress was properly denied.
VII. Conclusion.
Whether or not specifically addressed in this opinion, we reject the entirety of Frerichs' claims. We therefore affirm his convictions for possession of methamphetamine with intent to deliver, failure to affix a tax stamp, and operating while intoxicated (OWI).