STATE OF IOWA vs. DOUGLAS ARNOLD GRANT
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IN THE SUPREME COURT OF IOWA
No. 76 / 05-0020
Filed October 13, 2006
STATE OF IOWA,
Appellee,
vs.
DOUGLAS ARNOLD GRANT,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Woodbury County, John D.
Ackerman, Judge.
Defendant
convicted
of
possession
with
intent
to
deliver
methamphetamine appeals challenging sufficiency of evidence to show
intent to deliver. The court of appeals affirmed. DECISION OF COURT OF
APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.
Martha M. McMinn, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant
Attorney General, Nicholaus D. Garwick, Intern, and Thomas S. Mullin,
County Attorney, for appellee.
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CARTER, Justice.
Defendant, Douglas Arnold Grant, convicted following a bench trial of
possession with intent to deliver methamphetamine in violation of Iowa
Code section 124.401(1)(c)(6) (2003), a class “C” felony, appeals, challenging
the sufficiency of the evidence to show intent to deliver the controlled
substance found in his possession.
After reviewing the record and
considering the arguments presented, we affirm the decision of the court of
appeals and the judgment of the district court.
Officers Wagner and Tisher of the Sioux City Police Department, who
were members of an area drug task force, were trying to locate two persons
suspected of manufacturing methamphetamine. Information they received
from an informant indicated that defendant knew the suspects and might
know of their whereabouts.
The officers went to a house in Sioux City where defendant and his
brother were residing. They inquired whether the persons they were looking
for were inside the house.
When defendant answered in the negative,
Officer Wagner asked if they could search the house to verify that their
suspects were not there. Defendant replied that they could.
After entering defendant’s residence, the officers discovered that
defendant and his brother had recently been smoking marijuana in one of
the rooms. Officer Wagner asked if they could also search the residence for
marijuana. Defendant agreed that they could. The officers’ search for
marijuana and the persons they were looking for was unproductive, but
they did find an address book containing the names of two persons known
to them as manufacturers and distributors of methamphetamine.
At this point, Officer Wagner asked defendant whether he had any
methamphetamine in the house. Defendant acknowledged that he might
have an “eightball,” which in drug parlance is approximately one-eighth of
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an ounce. He led Officer Wagner to a location in the basement where two
sealed tins were secreted above an air duct. In opening the tins, the officers
discovered eight individually wrapped packages of methamphetamine
totaling 5.38 grams in weight. 1 Also contained in one of the tins was the
plastic shell of a ballpoint pen with the ink cartridge removed. The officers
identified this object as a “tooter” used for inhaling methamphetamine
fumes.
Defendant was charged with possession with intent to deliver more
than five grams of methamphetamine, a class “B” felony.
At his trial,
Officers Wagner and Tisher testified and described the events that we have
recited. Officer Wagner testified that, in his experience involving more than
100 cases, the packages containing between .58 and .66 grams were
“dosage” units designed for sale as such in order to produce a quick high.
He further testified:
Q. And what is the significance of the fact that you see
eight individually wrapped baggies of methamphetamine based
on your training and experience as a police officer and as a
Drug Task Force officer?
A. Through my training and
experience through both positions, an individual that uses
methamphetamine has no reason to take methamphetamine—
a larger substance of methamphetamine and put it into
individual baggies when they could continually go back to the
original bag and use their methamphetamine as they received
it from the original bag. I don’t see any reason why a user of
methamphetamine would want to go through the hassle of
individually packaging all their methamphetamine in small
quantities of approximately half-gram to a little more—to one of
them being a teener, one-sixteenth of an ounce of
methamphetamine. It wouldn’t be common practice for a user
of methamphetamine to divide the methamphetamine into
separate packaging like that.
On cross-examination, defendant’s counsel developed the fact that no
packaging material, scales, or large amounts of cash were found in the
1The
individual weights for the eight packages were .66 grams, .65 grams, .64
grams, .40 grams, .58 grams, .62 grams, .64 grams, and 1.19 grams.
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officers’ search and that the address book that had been located did not
describe particular drug transactions. On redirect, Officer Wagner testified:
Q. Is the fact that you did not see pay/owe sheets,
scales, or cash with the eight separately wrapped baggies of
methamphetamine, does that detract from your conclusion
that what you saw Mr. Grant had with him was consistent with
drug dealing? A. No, it does not.
Q. Why doesn’t it detract from your conclusion? A. The
eight individually packaged baggies in and of itself is conducive
to me that someone is—has these eight packages to be
distributed. As I stated earlier, if someone was just a user of
illegal drugs, it would be time-consuming and cumbersome to
take their larger quantity and break it up into separate baggies
for them to be using at a different date when they could just
take out of the original bag and use what they wanted and
keep it.
On cross-examination, Sergeant Kirkpatrick of the Sioux City Police
Department, supervisor of the area drug task force, admitted that the 5.38
quantity of methamphetamine found in defendant’s possession did not
exceed that which might be acquired for personal use.
Sergeant Kirkpatrick also testified concerning the buying and selling
of methamphetamine on the street. His testimony included the following:
DEFENDANT’S ATTORNEY: And I believe you have relied
on the packaging to indicate that it was ready for resale.
Couldn’t it just have easily been ready for resale by the person
whoever sold this to Mr. Grant? A. Anything is possible.
PROSECUTING ATTORNEY: Is it probable? A. In my
opinion, no. Generally, if he’s going to go and buy an eightball
from a dealer that sells eightball quantities, again, we’re talking
about the level in which you exist in this higher food chain,
that person is going to have eightballs for sale, probably
ounces for sale. Somebody that’s selling dosage units is right
at the bottom of the distribution network. They sell dosage
units. They package them for quick sale. If you are in the
market to buy eightballs or a couple of eightballs, your dealer
is generally going to have his drugs packaged that way because
of his position in the food chain.
Following a bench trial, defendant was convicted of possessing less
than five grams with intent to deliver, a class “C” felony. On appeal he
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challenges the sufficiency of the evidence to show an intent to deliver any
portion of the controlled substance found in his possession and, in the
alternative, argues that his conviction was against the weight of the
evidence. We consider these issues. Other facts relevant to our decision
will be considered in our discussion of the legal issues presented.
I. Proof of Intent to Deliver.
Because it is difficult to prove intent by direct evidence, proof of intent
usually consists of circumstantial evidence and the inferences that can be
drawn from that evidence. State v. Adams, 554 N.W.2d 686, 692 (Iowa
1996). We have also recognized that in controlled-substance prosecutions
opinion testimony by law enforcement personnel experienced in the area of
buying and selling drugs may be offered as evidence for purposes of aiding
the trier of fact in determining intent. State v. Olsen, 315 N.W.2d 1, 6-7
(Iowa 1982). We stated in Olsen:
[A witness] may testify on the pattern or modus operandi of a
certain offense and compare the facts of the case to it. The
distinction is that, on the one hand, the witness is asked for an
opinion based upon certain evidence as it relates to a welldefined modus operandi and on the other, an opinion on the
guilt or innocence of the defendant. The former is proper; the
latter is not.
Id. (citations omitted). We have also recognized that the intent to deliver a
controlled substance may be inferred from the manner of packaging drugs,
large amounts of unexplained cash, and the quantity of drugs possessed.
Adams, 554 N.W.2d at 692; State v. Birkestrand, 239 N.W.2d 353, 362 (Iowa
1976); State v. Dandridge, 213 N.W.2d 903, 904 (Iowa 1974).
In State v. Dinkins, 553 N.W.2d 339 (Iowa Ct. App. 1996), the court of
appeals was presented with a challenge to the sufficiency of the evidence to
establish an intent to deliver crack cocaine. The court found that the fact
that the defendant was observed interacting with persons on the street in
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an area where drug trafficking was common, possessed individually
wrapped rocks of crack cocaine, along with evidence from an experienced
police officer that these actions conformed to those of drug dealers was
sufficient to support a finding of intent to deliver. Dinkins, 553 N.W.2d at
342.
In the present case, although the quantity of drugs possessed was
characterized as not exceeding that which might be acquired for personal
use, the quantity was nonetheless substantial. This fact coupled with the
packaging of the drugs and the expert testimony of experienced police
officers was sufficient evidence to support the trial court’s finding that
defendant intended to deliver at least some of the methamphetamine that
was found in his possession. Defendant’s argument to the contrary is
based on the assumption that he purchased the drugs wrapped in the form
in which they were found at his residence. However, the State countered
this theory through the testimony of Sergeant Kirkpatrick that one
purchasing methamphetamine for personal use in the quantity that was
involved here would ordinarily receive the substance in bulk packaging
form. The district court, as trier of fact, could have found from all of the
evidence that defendant possessed the substance in individual packages of
small amounts to facilitate its sale.
II. The Weight-of-the-Evidence Argument.
As an alternative argument, defendant contends that, if it is found
that the evidence was sufficient to show intent to deliver, that finding would
be against the weight of the evidence presented. This issue was raised in
the district court in a motion for new trial based on Iowa Rule of Criminal
Procedure 2.24(2)(b)(6). In acting on such motions, the district court has
considerable discretion. State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998).
We review both a grant and a denial of relief based on a weight-of-the-
7
evidence claim for an abuse of discretion. State v. Reeves, 670 N.W.2d 199,
202 (Iowa 2003).
The granting of a new trial based on the conclusion that a verdict is
against the weight of the evidence is reserved for those situations in which
there is reason to believe that critical evidence has been ignored in the factfinding process. In the present case, all of the evidence presented was
carefully reviewed by the district court in its findings of fact. There is no
basis for concluding that any critical piece of evidence was ignored in the
trial court’s decision process. The district court did not abuse its discretion
in denying defendant’s claim that its decision was against the weight of the
evidence.
We have considered all issues presented and conclude that the
decision of the court of appeals and the judgment of the district court
should be affirmed.
DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT
COURT AFFIRMED.
All justices concur except Wiggins, J., and Ternus, C.J., who dissent,
and Hecht, J., who takes no part.
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#76/05-0020, State v. Grant
WIGGINS, Justice (dissenting).
I respectfully dissent. The only evidence of the defendant’s intent to
deliver is the officers’ discovery of eight separate bags of methamphetamine
coupled with the officers’ opinion testimony about the purpose of
individually wrapped bags. Officer Wagner best expressed the basis of the
officers’ opinion. He testified:
I don’t see any reason why a user of methamphetamine
would want to go through the hassle of individually
packaging all their methamphetamine in small quantities of
approximately half-gram to a little more—to one of them
being a teener, one-sixteenth of an ounce of
methamphetamine. It wouldn’t be common practice for a
user of methamphetamine to divide the methamphetamine
into separate packaging like that.
The officers did not find packaging materials, scales, large amounts of
cash, or pay/owe sheets in the residence. Although the officers did find an
address book containing the names of two persons known to them as
manufacturers and distributors of methamphetamine, the officers did not
find anything that could be construed as a customer list. Additionally, in
the same tin as the methamphetamine, the officers found drug
paraphernalia used to consume methamphetamine, not to sell it. Finally,
the officers conceded the quantity of drugs found did not exceed that which
might be acquired for personal use.
Contrary to the officers’ testimony, there are many reasons,
consistent with personal use explaining why the methamphetamine was
packaged separately. First, the defendant may have bought the drugs in
eight different packages.
Second, the defendant may have bought the
methamphetamine in one package and repackaged the drugs, planning to
take just enough to use at one time. Third, personal use makes perfect
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sense when the individually packaged drugs were found in the same tin as
the device to use the drugs.
“[I]ntent, being a mere act of the mind . . . is usually established by
appropriate inference and presumptions from the overt acts proved.” Hall v.
Wright, 261 Iowa 758, 771-72, 156 N.W.2d 661, 669 (1968). Without any
additional evidence of intent, the finder of fact would have to speculate
whether the packaging indicated the defendant had the intent to sell the
methamphetamine. Under this record, it is just as likely that the packaging
indicated the defendant intended to use the methamphetamine for personal
use. Accordingly, I believe finding eight packages of methamphetamine, in
small quantities consistent with personal use, in the same container as
paraphernalia used to consume these drugs, without any other evidence is
insufficient to support a conviction beyond a reasonable doubt for
possession with intent to deliver methamphetamine. I would reverse the
conviction.
Ternus, C.J., joins this dissent.
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