Opinion
No. 2-221 / 01-1626.
Filed May 15, 2002.
Appeal from the Iowa District Court for Linn County, MICHAEL J. NEWMEISTER, District Associate Judge.
Marcia Beatrice Hicks appeals her conviction and sentence for possession of prescription drugs in violation of Iowa Code section 155A.21 (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James G. Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Robert P. Ewald, Assistant Attorney General, Denver D. Dillard, County Attorney, and Laurie J. Craig, Assistant County Attorney, for appellee.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
Marcia Beatrice Hicks appeals her conviction and sentence for possession of prescription drugs in violation of Iowa Code section 155A.21 (1999). She contends her counsel was ineffective for failing to assert in the motion for judgment of acquittal that the evidence was insufficient to support a finding the pills in question were actually the prescription drug the State alleged, because the State presented no evidence of the pills' chemical makeup. We affirm.
Officer Chip Joecken stopped Marcia Hicks' car for a seatbelt violation. She consented to a search of her purse and the officer found a prescription bottle of pills in her purse. The label on the bottle stated the pills were sulfamethoxazole and bore the name Jackie Milligan.
Hicks was charged by trial information on March 26, 2001 with unlawful possession of a prescription drug in violation of Iowa Code section 155A.21 and the case proceeded to jury trial. At trial E. Ray Sheldon testified as an expert on the identification of prescription drugs. Sheldon is a licensed pharmacist and an investigator for the Iowa Board of Pharmacy Examiners. He identified the pills found in Hicks' purse as a prescription sulfa drug normally used to treat urinary tract infections. Sheldon stated he was able to identify the pills as sulfamethoxazole based on the identification number placed on "FDA approved" drugs and found on the individual tablets.
Hicks testified that a friend had given her the pills for her bronchitis but she had not taken any of them and was going to return them when the car she was in was stopped. The jury found Hicks guilty of unlawfully possessing sulfamethoxazole. The court sentenced Hicks to pay a fine of $250 plus surcharge, court costs, and attorney fees. Hicks appeals.
Hicks' only claim on appeal is that her trial counsel was ineffective for failing to include in the motion for judgment of acquittal an assertion that the evidence was insufficient to support a finding the pills in question were actually the prescription drug sulfamethoxazole, because there was no chemical evidence of the pills' molecular structure. While we often preserve ineffective assistance of counsel claims for postconviction proceedings, we will consider such claims on direct appeal if the record is sufficient. State v. Casady, 597 N.W.2d 801, 807 (Iowa 1999). Hicks asserts the record is adequate here, the State does not disagree, and we find the record sufficient to address her claim.
The standards required for a defendant to prevail on a claim of ineffective assistance of counsel are well established and need not be repeated here. See 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, 141-44 (Iowa 2001).
We find the State presented sufficient evidence to prove the pills found in the prescription bottle in Hicks' purse were actually the prescription drug sulfamethoxazole. Officer Joecken testified the pills were in a prescription drug pill bottle, with the contents identified as sulfamethoxazole. Investigator Sheldon specifically identified the pills by the identification number on each tablet as sulfamethozazole, a generic form of an anti-bacterial prescription drug. The identity of a substance as an illegal drug may be proved by circumstantial evidence. See In re C.T., 521 N.W.2d 754, 757 (Iowa 1994); see also United States v. Moskowitz, 888 F.2d 223, 229 (2d Cir. 1989) (nature of an illicit substance may be proved by circumstantial evidence without a chemical analysis). We agree with the State that there is no principled reason why the holding of C.T. should not also apply to "legal" drugs illegally possessed. Proof of a substance's identity by means other than chemical analysis would seem to be even more appropriate here, where the "legal" drugs contain numbers used to identify them, than where illegal drugs containing no such identifying markers are involved.
We conclude trial counsel did not breach an essential duty by not including in the motion for judgment of acquittal an assertion that the State failed to prove the pills in question were actually the prescription drug sulfamethoxazole, because such an argument would have been rejected by the trial court. Counsel is not ineffective for failing to pursue a meritless issue. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999); State v. Hochmuth. 585 N.W.2d 234, 238 (Iowa 1998).
Trial counsel had no duty to raise the meritless issue urged on appeal in the motion for judgment of acquittal and thus Hicks was not denied her Sixth Amendment right to effective assistance of counsel. The conviction and sentence are affirmed.
AFFIRMED.