Opinion
No. 3-120 / 02-0445.
Filed March 12, 2003.
Appeal from the Iowa District Court for Polk County, JOEL D. NOVAK, Judge.
James Walden appeals from his judgment and sentence entered upon jury verdicts finding him guilty of possession of a controlled substance and failure to possess a tax stamp. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Dennis Hendrickson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, John Sarcone, County Attorney, and Daniel Voogt, Assistant County Attorney, for appellee.
Considered by HUITINK, P.J., and MAHAN and HECHT, JJ.
James Walden appeals from his judgment and sentence entered upon jury verdicts finding him guilty of possession of a controlled substance and failure to possess a tax stamp. He contends: (1) there was insufficient evidence in the record to support his convictions and (2) the district court erred in granting the State's post-trial motion to amend the trial information. We affirm.
Background Facts and Proceedings. On October 1, 2001, Officers Hickey, Kress, and Glenn stopped at a Des Moines convenience store. Officers Kress and Glenn went inside the convenience store while Officer Hickey remained inside the vehicle. Officer Hickey observed Walden and another male individual approach the pay phone. Each man picked up a telephone receiver and instead of making telephone calls, they began talking to each other. When the two noticed Officer Hickey, they "became somewhat nervous" and went back to their respective vehicles. Both vehicles drove to an apartment complex across the street from the convenience store and stopped in the parking lot. Once Officers Kress and Glenn returned from the convenience store, the three officers followed the two vehicles in their unmarked vehicle.
Upon arriving at the apartment complex, the officers saw the two men talking. The two men appeared to recognize the officers' vehicle as the one they had seen at the convenience store because they ran to their respective vehicles and left the parking lot. The officers followed Walden's vehicle and attempted to pull him over. Walden refused to pull over. The officers called for assistance from a marked squad car. Eventually, Walden stopped.
Officer Hickey approached the driver's side of the vehicle and Walden, upon exiting the vehicle, claimed the officers were interfering with his drug investigation. Officers Kress and Glenn went to the passenger side of the vehicle and secured the male passenger; Danny Scavo. Officers found two plastic bags in the passenger side of the vehicle. One contained methamphetamine, and the other contained oxycodone. A third bag containing four hydrocodone pills was found behind the vehicle. Walden told the officers his fingerprints would be on the bags because he had handled them earlier in the day. Officers arrested both Walden and Scavo.
On November 9, 2001, Walden was charged by trial information with conspiracy to deliver a controlled substance in violation of Iowa Code section 124.401(1)(c)(6) (2001) (count I); possession with intent to deliver oxycotin in violation of section 124.401(1)(c)(8) (count II); and failure to possess a tax stamp in violation of sections 453B.3 and 453B.12 (count III). In January 2002 the district court granted the State's motion to amend the trial information to reflect Walden possessed oxycodone, not oxycotin. Trial commenced on January 9, 2002. At trial Walden testified he was working as a confidential informant and was involved in a drug investigation when he was stopped by Des Moines police officers. The State presented evidence that no officers, including the officers Walden had worked with previously, were aware of the drug investigation he alleged to be pursuing at the time of his arrest. Further, evidence was presented that Walden was prohibited from freelancing or investigating his own criminal cases.
The jury returned verdicts of guilty on counts II and III. On January 22, 2002, the district court granted the State's motion to amend the trial information to include two habitual offender enhancements. Walden was sentenced to two years on count II and fifteen years on count III. Walden appeals.
Sufficiency of the Evidence. We need not address Walden's argument that insufficient evidence supports the jury verdict because we agree with the State that Walden has waived his claim by failing to adequately discuss the issue in his brief. Iowa Rule of Appellate Procedure 6.14(1)( c) provides: "Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue." Walden fails to articulate or argue what is insufficient about the evidence. Because he fails to articulate any arguments to that end, the point is moot. See State v. Cooley, 608 N.W.2d 9, 13 (Iowa 2000). Therefore, we need not consider Walden's sufficiency of the evidence claim.
Motion to Amend Trial Information. In resisting the State's motion to amend the trial information, Walden argued, "surprise." He contends that he was not aware the State would seek enhanced penalties until after he testified at trial and was subject to impeachment by his prior convictions. He further argues his testimony preempted the State from proving beyond a reasonable doubt that he had two prior felony convictions. See Iowa Code § 902.8.
Iowa Rule of Criminal Procedure 2.4(8)( a) governs amendments to trial informations. It provides:
Generally. The court may, on motion of the state, either before or during the trial, order the indictment amended so as to correct errors or omissions in matters of form or substance. Amendment is not allowed if substantial rights of the defendant are prejudiced by the amendment, or if a wholly new and different offense is charged.
The supreme court has interpreted this rule to require a two-part test:
A trial information, like an indictment, may be amended to correct errors or omissions of form or substance, so long as a two-pronged test is satisfied: (1) substantial rights of the defendant are not prejudiced thereby, and (2) a wholly new or different offense is not charged.State v. Berney, 378 N.W.2d 915, 919 (Iowa 1985). Both parties agree the State did not charge "a wholly new and different offense." See id. Thus, the critical issue is whether the amendment prejudiced "substantial rights" of Walden. An amendment prejudices the substantial rights of the defendant if it creates such surprise that the defendant would have to change trial strategy to meet the charge in the amended information. State v. Fuhrmann, 257 N.W.2d 619, 624 (Iowa 1977).
We find the amendment did not prejudice "substantial rights" of Walden. First of all, the amendment did not require him to change trial strategy. His defense turned on his assertion that he was working as a confidential informant at the time of his arrest. We note that Walden may not have testified if he had known at the time of trial that the State would amend the trial information to allege he was a habitual offender. However, the record establishes the State was aware of Walden's prior felony convictions before he testified. It is speculation on Walden's part to believe that the State would be unable to prove his prior convictions had he not testified. Secondly, Walden did not ask for a continuance, which is the traditionally appropriate remedy for a defendant's claim of surprise. See State v. Maghee, 573 N.W.2d 1, 6 (Iowa 1998) (citing State v. Schertz, 330 N.W.2d 1, 2 (Iowa 1983) ("The appropriate remedy for a defendant's claim of surprise is, of course, to ask for a continuance. . . .")). For these reasons, we find Walden was not prejudiced by the amendment and affirm the district court on this issue.