Opinion
No. 1-648 / 00-1826.
Filed January 28, 2002.
Appeal from the Iowa District Court for Warren County, PETER A. KELLER, Judge.
Douglas Johnson appeals his convictions and sentences for conspiracy to manufacture methamphetamine and conspiracy to possess anhydrous ammonia with the intent to manufacture methamphetamine in violation of Iowa Code sections 124.401(1)(c)(6) (1999) and 124.401(4), 706.1 and 706.3 (Supp. 1999).
AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, Kevin Parker, County Attorney, and Ryan Ellis, Assistant County Attorney, for appellee.
Heard by HUITINK, P.J., and VOGEL and EISENHAUER, JJ.
The defendant, Douglas Johnson, appeals his convictions for conspiracy to manufacture methamphetamine and conspiracy to possess anhydrous ammonia with intent to manufacture methamphetamine in violation of Iowa Code sections 124.401(1)(c)(6) (1999), and 124.401(4), 706.1, and 706.3 (Supp. 1999). He contends the evidence was insufficient to support either conviction, the court erred in failing to merge the charges, the court erred in failing to provide instructions that sufficiently explained the applicable law, and his trial counsel provided ineffective assistance. We affirm the convictions but preserve for possible postconviction relief proceedings his ineffective assistance contentions.
Background Facts and Proceedings . On May 22, 2000, the State charged Douglas Johnson with conspiracy to manufacture methamphetamine, conspiracy to possess anhydrous ammonia with intent to manufacture methamphetamine, and trespass with intent to steal anhydrous ammonia. The State initially jointly charged Johnson with his wife Nancy and his brother Duane. Nancy later entered a guilty plea and agreed to testify against Johnson. Duane also pled guilty but did not testify in this matter.
From the facts adduced at trial, the jury could have found the following. On April 1, 2000, Nancy witnessed Johnson talking to Bill Jones, a person she knew sold and had been arrested for manufacturing methamphetamine. She observed Jones hand Johnson a cooler but did not hear any of their conversation. Shortly after Jones left, Johnson asked Duane if he could use his car to drive to Warren County. Duane and Nancy then drove Johnson to a rural area near Indianola and stopped adjacent to a field that contained an anhydrous ammonia tank. Around that time, Chris Barr was traveling on Highway S-23 near Indianola when he observed a car containing three people stop along the side of the road. One man, later identified as Douglas Johnson, exited and walked towards an anhydrous ammonia tank while carrying a black bag. Barr then called 911 and informed the police of what he was witnessing. Johnson, however, noticed Barr watching him and attempted to hide in the grass and crawl behind some hay bales.
Police later stopped the vehicle Barr had observed and found Nancy and Duane to be inside. Nancy and Duane identified Johnson as the man Barr had seen exit their vehicle and approach the anhydrous ammonia tank. Police officers later went back to the field and discovered a black plastic sack containing a plastic thermos jug and a pair of weather work gloves hidden near the anhydrous tank. Based on this information, officers arrested Johnson.
Following the subsequent trial, the jury found Johnson guilty of conspiracy to manufacture methamphetamine and conspiracy to possess anhydrous ammonia with intent to manufacture methamphetamine. The court sentenced him to an indeterminate term of incarceration of ten years on the first count and an indeterminate term of five years on the second count, to be served consecutively. Johnson appeals from the convictions.
Sufficiency of the Evidence . Johnson first maintains the evidence was insufficient as a matter of law to convict him on either charge. We will uphold a verdict where there is substantial evidence to support the charge. State v. LeGear, 346 N.W.2d 21, 23 (Iowa 1984). 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. Id. The evidence is viewed in the light most favorable to the State, including legitimate inferences and presumptions which may fairly and reasonably be deduced from the record. State v. Bass, 349 N.W.2d 498, 500 (Iowa 1984). We consider all the evidence at trial, not just the evidence that supports guilt. State v. Robinson, 288 N.W.2d 337, 340 (Iowa 1980).
Johnson urges on appeal that the State tried this case as one continuing event. We agree the facts as revealed at trial tell one storyline, starting with the conversation between Jones and Johnson and ending with Johnson being discovered near the anhydrous tank after Duane and Nancy had driven him to Warren County. However, wrapped up in that singular chain of events, we believe a reasonable jury could have found two distinct conspiracies: one between Johnson and Bill Jones, and a second between Johnson and his wife Nancy.
Because an agreement is the primary element of a conspiracy charge, the nature of the agreement between conspirators determines whether a single overall conspiracy or separate conspiracies have occurred. See State v. Moritz, 293 N.W.2d 235, 239 (Iowa 1980) (citing United States v. Palermo, 410 F.2d 468, 470 (7th Cir. 1969)). Thus, although the story told by the evidence in this case may be interpreted as one long narrative, we may affirm if the record supports a finding that Johnson agreed with Jones to manufacture methamphetamine and agreed separately with Nancy to possess anhydrous ammonia with intent to manufacture methamphetamine.
a. Conspiracy to manufacture methamphetamine . Johnson maintains there was not sufficient evidence to prove the essential element of an agreement to manufacture methamphetamine. To prosecute this charge, the State produced evidence of a conspiracy between Johnson and Bill Jones. The evidence of this conspiracy began with Nancy observing Jones handing Johnson a cooler, and then Johnson accepting and placing that cooler in Duane's vehicle. Immediately after the cooler exchange, Johnson asked for a ride to a Warren County farm with an anhydrous ammonia tank. To support the importance of the cooler and the need for anhydrous, Deputy Tim Clark of the Warren County Sheriff's Office testified that anhydrous ammonia is used in the manufacturing of methamphetamine and that the theft of such a chemical is commonly accomplished using a cooler and leather gloves of the type discarded by Johnson in the field.
Nancy further testified she knew Bill Jones because he was a "meth" dealer and she had purchased the drug from him in the past. She further testified that she knew he had previously been arrested for manufacturing the drug. Thus, there is evidence Jones was not only a methamphetamine dealer but also a manufacturer. Based on the evidence before the jury, we believe substantial evidence in the record supports a finding that Johnson agreed with Jones to manufacture methamphetamine.
b. Conspiracy to possess anhydrous ammonia with intent to manufacture methamphetamine . In prosecuting this separate conspiracy, the State forwarded evidence of a separate agreement between Nancy and Johnson. Deputy Clark testified without objection that Nancy told him her understanding was that Johnson intended to steal anhydrous ammonia using the jug inside the black bag. She was aware that methamphetamine was intended to be manufactured after the anhydrous ammonia was stolen. To further this goal, she accompanied Johnson in the vehicle to the Warren County farm where he attempted to steal the chemical. We believe this evidence, supports the jury's finding that Johnson and Nancy agreed and attempted to possess anhydrous ammonia with intent to use that product to manufacture methamphetamine.
Johnson asserts there is little direct evidence of the conspiracies or agreements in this case. However, even if the State did not offer direct evidence of an agreement, it was not required to do so. State v. Casady, 597 N.W.2d 801, 804-05 (Iowa 1999). It may prove an agreement through circumstantial evidence and "[a]ll legitimate inferences arising reasonably and fairly from the evidence may be indulged in to support the verdict." State v. Mapp, 585 N.W.2d 746, 748 (Iowa 1998). Our supreme court has also said:
[a]n agreement that, because of its purpose or the means contemplated, amounts to a conspiracy need not be formal or express, but may be a tacit understanding; the agreement may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the alleged conspirators.Mapp, 585 N.W.2d at 748 (quoting 16 Am.Jur.2d Conspiracy § 10, at 204-05 (1998) (footnotes omitted)). Here, a permissible inference arising from the meeting of Johnson and Jones, and the transfer of the cooler, was the agreement to manufacture methamphetamine. Further, the evidence of Nancy's knowledge of Jones's reputation, of Johnson's plan and the fact she accompanied him on his quest to steal anhydrous ammonia clearly lends itself to a legitimate inference they agreed to possess anhydrous ammonia in order to facilitate the production of methamphetamine. We therefore conclude the evidence was sufficient to support both of Johnson's convictions.
Merger of the Charges . Johnson next contends the court erred in ruling that the charges of conspiracy to manufacture methamphetamine and conspiracy to possess anhydrous ammonia with intent to manufacture methamphetamine did not merge. Our holding that there was substantial evidence supporting both conspiracies, one with Bill Jones and one with Nancy, obviates much of Johnson's arguments on this issue. Furthermore, Johnson conceded at oral argument that if this court were to determine the evidence was sufficient to support two conspiracies with two different people, then his merger argument would be without merit.
We conclude the district court correctly denied Johnson's request to dismiss or merge the charges. See State v. Walker, 610 N.W.2d 524, 527 (Iowa 2000) (rejecting the defendant's contention two charges should have merged where the record supported a factual basis for two separate crimes).
Ineffective Assistance of Counsel . Johnson maintains trial counsel provided ineffective assistance in a variety of respects. He first claims counsel failed in his duty to request jury instructions that (1) caution the jury that they cannot convict based on the testimony of an accomplice without corroborating evidence, and (2) caution the jury regarding multiple counts. Johnson further complains of counsel's performance with respect to Nancy's testimony in that counsel breached his duty to (1) object to her testimony as being protected by the marital privilege, (2) object to her testimony for lack of foundation and lack of personal knowledge, (3) depose her, and (4) file a motion to compel or a motion to strike her testimony. We do not believe the record is sufficient to address these claims and, therefore, we preserve them for a possible postconviction relief action. See State v. Fox, 491 N.W.2d 527, 535 (Iowa 1992) (preserving ineffective-assistance-of-counsel claims for later proceedings so trial counsel will have an opportunity to explain the contested conduct).
Conclusion . Substantial evidence supports both of Johnson's convictions.
Consequently, the court did not err in failing to merge them. We preserve the various ineffective assistance of counsel claims for a possible postconviction relief application.
AFFIRMED.