STATE OF IOWA, Plaintiff-Appellee, vs. ANGELA CHRISTINE McDERMOTT, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-945 / 05-1557
Filed April 11, 2007
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ANGELA CHRISTINE McDERMOTT,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, George L.
Stigler, Judge.
Angela Christine McDermott appeals from the judgment and sentences
entered by the district court on jury verdicts finding her guilty of multiple drug
offenses. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Brad P. Walz, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
2
ZIMMER, J.
Angela Christine McDermott appeals from the judgment and sentences
entered by the district court on jury verdicts finding her guilty of possession of
more than five grams of methamphetamine with the intent to deliver and
conspiracy to manufacture more than five grams of methamphetamine in
violation of Iowa Code section 124.401(1)(b) (2003), possession of marijuana
with the intent to deliver in violation of section 124.401(1)(d), possession of
ephedrine
and/or
pseudoephedrine
with
the
intent
to
manufacture
methamphetamine in violation of section 124.401(4), and a drug tax stamp
violation under section 453B.12. McDermott contends the evidence is insufficient
to support her convictions, her trial counsel was ineffective for failing to move for
judgment of acquittal on the basis the State failed to prove she had the intent to
deliver methamphetamine and marijuana and the intent to manufacture
methamphetamine, and the court abused its discretion in overruling her
objections to the State’s rebuttal evidence and to alleged hearsay admitted
during rebuttal. We affirm.
I.
Background Facts and Proceedings
On May 15, 2004, sometime after midnight, Waterloo Police Sergeant
Richard Knief and several other uniformed police officers went to the Heartland
Inn to investigate suspected drug activity. Sergeant Knief learned Dean Beninga
had paid for rooms 114 and 202 with cash and registered with a fictitious
address. When Sergeant Knief knocked on the door of room 202, the door was
answered by Angela McDermott.
The sergeant observed Beninga and J.R.
McGraw near the desk in the room, but McGraw quickly stepped out of sight.
3
The officers had McDermott, Beninga, and McGraw exit the room and step into
the hallway, allowing the door to shut and lock behind them.
McDermott provided the officers with her correct name. She had only a
cellular telephone on her person. The officers found $527 on McGraw’s person,
as well as a cigarette package that contained a small amount
of
methamphetamine consistent with personal use. Beninga had $505 in his wallet.
Officers took McDermott, Beninga, and McGraw to the police station. Sergeant
Knief left the hotel to obtain a search warrant for room 202, while Officer Brice
Lippert remained to watch the room and locate a female suspect believed to be
with McGraw.
Sergeant Knief and Officer Lippert executed a search warrant on room
202 sometime after 3:15 a.m.
On the bed, officers found articles of female
clothing, as well was a black purse that contained McDermott’s current driver’s
license, $291, two plastic bags of marijuana without tax stamps, six plastic bags
of methamphetamine, pseudoephedrine pills, and tinfoil commonly used to ingest
methamphetamine.
Officers also discovered a large handbag containing an
envelope addressed to McDermott and a bottle of Prozac and Haldol, as well as
a
makeup
kit
containing
methamphetamine
residue,
unused
and
plastic
a
straw
bags,
bags
commonly
with
suspected
used
to
snort
methamphetamine. 1
A number of bottles containing ephedrine and pseudoephedrine were
discovered in a blue suitcase and in dresser drawers.
1
Some of the bottles
Additional female clothing was hanging on the clothes rack, and the bathroom
contained hair and bath products not provided by the hotel.
4
contained more than the thirty-six tablets listed on the labels. An empty pill bottle
was located in the garbage can. The officers also located ninety empty plastic
bags, bags containing white residue, a pipe, a small torch, tinfoil, and bags of
methamphetamine. Another bag of methamphetamine was discovered in the
pocket of a pair of men’s blue jeans. A black bag near the desk in the room
contained $3600, and a digital scale sat on top of the desk.
Other items
discovered in the room included several pairs of gloves, a cup of powder possibly
used as a cutting agent, a drill, burnt forceps, and a bottle converted into a pipe.
Officers also searched a vehicle in the parking lot that was registered to
Beninga. Inside the vehicle, they discovered a bag of gloves, empty plastic bags,
scissors, muriatic acid, tubing, and a pump.
On May 16, 2004, Cedar Falls police received a telephone call from the
general manager of the Extended Stay Inn, Richard Potter. Potter told the police
room 134, which was registered to McDermott from April 28 though May 14,
contained possible drug paraphernalia.
Later that day, Cedar Falls Officer
Dennis O’Neill searched room 134 and seized items believed to be related to
methamphetamine use and manufacturing.
The items seized included an
unopened bag of coffee filters, 2 plastic tubing, small plastic bags, a bag and
plastic cup with residue, burnt tubes, a pipe, a packet of pseudoephedrine pills,
and an empty pseudoephedrine pill bottle. The empty bottle was the same brand
as many of the bottles seized from room 202 at the Heartland Inn.
Based on the events we have just described, the State filed a trial
information charging McDermott with possession of more than five grams of
2
The hotel provided coffee in filtered packets.
5
methamphetamine with the intent to deliver as a second offender, conspiracy to
manufacture more than five grams of methamphetamine as a second offender,
possession of marijuana with the intent to deliver as a second offender,
possession of ephedrine and/or pseudoephedrine with the intent to manufacture
methamphetamine, and a drug tax stamp violation. McDermott was also charged
with two counts of unlawful possession of prescription drugs.
A jury trial
commenced in May 2005.
Waterloo Sergeant Corbin Payne, a certified narcotics officer who
examined
the
items
seized
from
room
202,
opined
the
quantity
of
methamphetamine, the method of packaging, and the other items found in the
room were more consistent with the distribution of methamphetamine than
personal use. He testified that methamphetamine is usually weighed on a scale
and packaged for sale in small plastic bags, and the weight and packaging of
methamphetamine indicates whether it is intended for personal use or delivery.
He further testified the six bags of methamphetamine found in McDermott’s
purse, which totaled 7.69 grams, 3 and the presence of more than $200 in cash
were consistent with sale and distribution.
According to Sergeant Payne, a
common amount of methamphetamine for personal use would be one gram or
less, such as the one-quarter gram discovered upon McGraw’s person.
Sergeant Payne testified methamphetamine is manufactured from a
precursor, such as the large number of pseudoephedrine pills discovered in room
202. Iowa Division of Criminal Investigation Criminalist Terry Rowe estimated
the amount of pseudoephedrine found in the room, more than forty grams, could
3
The bags ranged in weight from 0.26 grams to 3.14 grams.
6
yield between 5.5 and 14.7 grams of finished methamphetamine. Although other
ingredients such as anhydrous ammonia and lithium batteries were not found in
the hotel room, Sergeant Payne testified it is common to perform different steps
of the manufacturing process at different locations.
For example, the pump
discovered in Beninga’s vehicle could be used to speed up the manufacturing
process, and gloves are commonly used for protection from the chemicals.
The marijuana discovered in McDermott’s purse was packaged in two
bags that weighed 25.2 and 26.3 grams, respectively. Sergeant Payne testified
the discovery of two separate packages of marijuana totalling more than fifty
grams was more consistent with sale and distribution than with personal use.
Although Payne testified it is common to use and sell marijuana, he concluded a
portion of the marijuana found in McDermott’s purse was intended for sale.
Beninga, who had married McDermott after their arrest in May, testified for
the defense. 4 Beninga said a woman named Jenny spent the night of May 13
with him in room 202 and he spent May 14 with his father at a local hospital.
Beninga claimed when his father died the evening of May 14, he called
McDermott because he did not want to be alone, and he offered to rent a second
room for McDermott’s children. Beninga contended he did not ask McDermott to
bring anything drug-related to the room and did not discuss drugs or precursors
with her. 5
Beninga admitted he brought methamphetamine and bottles of
pseudoephedrine to the room, and he admitted he used, manufactured, and sold
4
Beninga pled guilty to three methamphetamine charges.
Beninga admitted he visited McDermott’s room at the Extended Stay Inn on a number
of occasions. His most recent visit occurred May 12. Beninga denied bringing items to
manufacture methamphetamine to McDermott’s room, and he denied seeing such items
when he visited the room.
5
7
methamphetamine.
However, he denied manufacturing the drug with
McDermott, or planning to manufacture with her that day.
The jury returned not-guilty verdicts on the two charges of unlawful
possession of prescription drugs and returned guilty verdicts on all remaining
charges. McDermott filed a motion in arrest of judgment and a motion for new
trial, which the district court denied. The court sentenced McDermott to a prison
term not to exceed fifty years on the possession of methamphetamine with intent
to deliver conviction.
The court did not impose sentence on the conspiracy
conviction because that offense merged with the defendant’s conviction for
possession of methamphetamine with intent to deliver pursuant to section 706.4. 6
McDermott was sentenced to a term of incarceration of up to five years for each
of the remaining three convictions.
All sentences were ordered to run
concurrently. McDermott now appeals.
II.
Sufficiency of Evidence
McDermott claims the record contains insufficient evidence to support her
convictions. We review this claim for the correction of errors at law and uphold
the jury’s verdict if substantial evidence supports it.
State v. Williams, 695
N.W.2d 23, 27 (Iowa 2005). Substantial evidence is defined as evidence that
“could convince a rational trier of fact that the defendant is guilty beyond a
reasonable doubt.” State v. Robinson, 288 N.W.2d 337, 339 (Iowa 1980). We
consider all the evidence in the record, not just the evidence supporting guilt.
6
Section 706.4 provides:
A conspiracy to commit a public offense is an offense separate and
distinct from any public offense which might be committed pursuant to
such conspiracy. A person may not be convicted and sentenced for both
the conspiracy and for the public offense.
8
State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005). We view the evidence in the
light most favorable to the State and consider legitimate inferences and
presumptions that may reasonably be deduced from it. Id. Circumstantial and
direct evidence are equally probative. Iowa R. App. P. 6.14(6)(p).
A.
Constructive Possession.
In challenging the sufficiency of the
evidence to support her convictions for possession of methamphetamine and
marijuana
with
intent
to
deliver,
possession
of
ephedrine
and/or
pseudoephedrine with intent to manufacture, and a drug tax stamp violation,
McDermott asserts the State failed to prove she actually possessed,
constructively possessed, or aided and abetted in the possession of the drugs or
precursors. To prove unlawful possession, the State has the burden of proving
McDermott: (1) exercised dominion and control over the contraband, (2) had
knowledge of its presence, and (3) had knowledge the material was a controlled
substance.
State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003).
Proof that
McDermott had opportunity of access to the location where the contraband is
found will not, without more, support a finding of unlawful possession. Id.
Because none of the contraband was found on McDermott’s person, the
State must establish that McDermott was in constructive possession of the drugs
and precursors. See Carter, 696 N.W.2d at 38. 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. Bash, 670 N.W.2d at 138.
Although constructive possession may not be inferred from the mere fact a
defendant is sharing a premises with others, it may be established by proof of
other circumstances linking the defendant to the controlled substance, such as
9
incriminating statements by the defendant, incriminating actions of the defendant
when the police discover a controlled substance among or near the defendant's
personal belongings, and the defendant's fingerprints on the packages containing
the controlled substance. State v. Nitcher, 720 N.W.2d 547, 558 (Iowa 2006).
Viewing all the evidence in the light most favorable to the State, we
believe a rational jury could conclude McDermott knew her purse contained
methamphetamine, marijuana, and pseudoephedrine and exercised dominion
and control over those items. In this case, the contraband was discovered in a
purse that also contained McDermott’s current driver’s license, and the presence
of the controlled substances among her personal effects weighs in favor of
finding constructive possession.
The record reveals McDermott had access to Beninga’s room after he left
to attend a graduation party. The defendant had taken a shower just before law
enforcement officers knocked on the motel room door. Officers found female
clothing on the bed near the purse that contained McDermott’s license, on the
floor, and on a clothes rack. They also found a makeup kit in the room and extra
bath and hair products in the bathroom. The officers recovered another handbag
in the motel room that contained a piece of mail addressed to McDermott. An
empty pseudoephedrine pill bottle discovered in McDermott’s room at the
Extended Stay Inn was the same brand as many of the bottles of
pseudoephedrine seized in room 202.
Based on these circumstances, we
believe the jury could reasonably have concluded McDermott had a proprietary
interest in or an immediate right to control the contents of the purse, which
included bags of marijuana and methamphetamine and a bottle of precursor pills.
10
We also find the jury could have reasonably concluded the defendant aided and
abetted the possession of additional methamphetamine and pseudoephedrine
pills found in the room.
B. Conspiracy. McDermott also contends the evidence was insufficient
to
support
the
jury’s
finding
that
she
conspired
to
manufacture
methamphetamine. In order to establish McDermott’s guilt on the conspiracy
charge, the State had to prove, in relevant part, that she had entered into an
agreement with Beninga to manufacture methamphetamine. 7 McDermott asserts
the State failed to prove the existence of any such agreement.
In support of her contention, McDermott argues there is no direct evidence
of an agreement and points out that Beninga testified she was only present as a
guest in his hotel room and was not there for any illegal purpose. However, the
jury was not required to credit Beninga’s testimony, particularly in light of his
recent marriage to McDermott. See State v. Thornton, 498 N.W.2d 670, 673
(Iowa 1993) (noting it is the jury’s duty to assess witness credibility and assign
evidence whatever weight it deems proper, and it may believe or disbelieve
testimony as it chooses).
7
Moreover, an agreement can be proved through
Jury Instruction 20 states:
The State must prove all the following elements of Conspiracy to
Manufacture Methamphetamine:
1. On or about the 15th day of May, 2004, the defendant Angela
Christine McDermott agreed with Dean Alan Beninga that one or more of
them would commit the offense of Manufacture of Methamphetamine.
2. The defendant entered into the agreement with the intent to
promote or facilitate the Manufacture of Methamphetamine.
3. The defendant or Dean Alan Beninga committed an overt act:
acquiring of pseudoephedrine and/or ephedrine or other materials to
manufacture methamphetamine.
If the State has proved all of these elements, the defendant is
guilty of Conspiracy. If the State has failed to prove any one of the
elements, the defendant is not guilty of Count II.
11
circumstantial
evidence,
including
declarations
and
conduct
of
alleged
conspirators and any and all reasonable inferences arising from such evidence.
State v. Speicher, 625 N.W.2d 738, 742 (Iowa 2001).
“Importantly, an
agreement need not be—and oftentimes is not—formal and express. A tacit
understanding—one ‘inherent in and inferred from the circumstances’—is
sufficient to sustain a conspiracy conviction.” Id. (citations omitted).
The record reveals McDermott had a large quantity of finished
methamphetamine in her purse along with pseudoephedrine pills, a common
precursor used to manufacture methamphetamine. Bottles of the same brand of
pseudoephedrine
were
discovered
throughout
room
202.
Additional
pseudoephedrine pills and an empty bottle were found in McDermott’s room at
the Extended Stay
Inn, along with
items
commonly
associated
with
methamphetamine manufacturing, including coffee filters, tubing, and plastic
bags. Still more items associated with methamphetamine manufacturing were
found in Beninga’s car, which was parked outside the hotel. Finally, the record
contains testimony that it is common to perform different stages of the
manufacturing process at different locations. This evidence, when viewed in the
light most favorable to the State, provides sufficient support for a determination
that McDermott and Beninga entered into the necessary agreement.
We find substantial evidence to support McDermott’s convictions.
III.
Ineffective Assistance of Counsel
McDermott claims her trial counsel was ineffective for failing to move for
judgment of acquittal on the basis the State failed to prove she had the intent to
deliver marijuana and methamphetamine or the intent to manufacture
12
methamphetamine. We review this claim de novo. State v. Collins, 588 N.W.2d
399, 401 (Iowa 1998).
McDermott must establish by a preponderance of
evidence that her trial counsel failed to perform an essential duty and prejudice
resulted.
State v. Martin, 587 N.W.2d 606, 609 (Iowa Ct. App. 1998).
If
McDermott is unable to prove either prong, her ineffective assistance claim will
fail. State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003).
We conclude McDermott’s trial counsel breached no duty by failing to
move for judgment of acquittal on either of the above-noted bases. The record in
this matter contains substantial evidence McDermott possessed the necessary
intent.
Accordingly, the motion for judgment of acquittal would have been
denied, and defense counsel has no duty to make a meritless motion. State v.
Rice, 543 N.W.2d 884, 888 (Iowa 1996).
A. Intent to Deliver. As previously noted, the State presented evidence
that the six individually packaged bags of methamphetamine and the presence of
more than $200 in cash found in McDermott’s purse was consistent with sale and
distribution and that her purse contained far more methamphetamine than the
common amount of methamphetamine for personal use. In addition, the State
presented evidence that the discovery of two separate packages of marijuana
totaling more than fifty grams in McDermott’s purse was more consistent with
sale and distribution than with personal use. The foregoing is sufficient to allow a
rational jury to conclude McDermott possessed the methamphetamine and
marijuana with the intent to deliver.
B. Intent to Manufacture. McDermott asserts that even if the State
proved she possessed pseudoephedrine, it did not prove she did so with the
13
intent to use it in the manufacture of methamphetamine. See State v. Truesdell,
679 N.W.2d 611, 618 (Iowa 2004) (determining the version of the statute under
which McDermott was charged “is directed at the intent of the possessor to use
the product to manufacture a controlled substance, not the mere knowledge or
belief of the possessor that the product would be used to manufacture a
controlled substance”). However, as the State notes, the jury was instructed it
could find McDermott guilty if the State proved she “possessed or did knowingly
aid and abet the possession of that substance with the intent that it be used to
manufacture” methamphetamine. This instruction, which is now law of the case,
see State v. Taggart, 430 N.W.2d 423, 425 (Iowa 1988), allowed the jury to
convict McDermott so long as it found she intended the precursors be used to
manufacture methamphetamine whether or not she intended to participate in the
actual manufacturing process.
We have already determined substantial evidence supports McDermott’s
conviction for conspiracy to manufacture methamphetamine, specifically the
requirement that she entered into an agreement to manufacture the drug. The
same facts that support McDermott’s conspiracy conviction, when viewed in the
light most favorable to the State, substantially support a determination that
McDermott possessed pseudoephedrine with the intent that it be used to
manufacture methamphetamine.
In fact, contrary to McDermott’s contention,
these facts are sufficient to raise a fair and reasonable inference that McDermott
intended to personally use the precursors in the manufacturing process.
14
IV.
Rebuttal Evidence and Hearsay
McDermott’s final claim is that the court abused its discretion in overruling
her objections to certain testimony by Officer O’Neill and Richard Potter, the
manager of the Extended Stay Inn.
McDermott objected to testimony from
Officer O’Neill that he discovered coffee filters, plastic tubing, small plastic bags,
burnt tubes, a plastic cup with residue, an empty pseudoephedrine pill bottle, and
other pseudoephedrine pills in McDermott’s hotel room at the Extended Stay Inn
and
that
these
methamphetamine.
items
are
commonly
associated
with
manufacturing
She also objected to testimony from Potter that a
housekeeper entered McDermott’s hotel room and reported seeing what
appeared to be drug paraphernalia, after which Potter called the police, and
officers arrived to search the room.
The district court disagreed with McDermott’s contention that the foregoing
testimony was not proper rebuttal evidence.
The court also overruled
McDermott’s hearsay objection to the portion of Potter’s testimony that repeated
the housekeeper’s observations. However, it instructed the jury as follows: “I’m
going to permit this to explain conduct and so in that regard it’s not admissible for
the truth of the matter asserted, but just to show why the witness did what the
witness did.” We review the district court’s decision to admit this evidence for an
abuse of discretion. State v. Johnson, 539 N.W.2d 160, 162 (Iowa 1995).
A. Rebuttal Evidence. Rebuttal evidence is that which explains, repels,
controverts, or disproves evidence produced by the opposing party. Id. at 16263. Generally, rebuttal evidence is confined to new matters first introduced by
the opposing party. Carolan v. Hill, 553 N.W.2d 882, 889 (Iowa 1996). Thus,
15
evidence that is merely cumulative, adding nothing further to the position taken
by previous witnesses, is not admissible as rebuttal. Id. The district court has
considerable discretion in admitting rebuttal evidence, and we will disturb its
ruling only upon a showing of clear abuse of discretion. State v. Webb, 309
N.W.2d 404, 411 (Iowa 1981).
As we stated previously, Beninga testified on McDermott’s behalf. He
claimed responsibility for the bottles of pseudoephedrine and methamphetamine
discovered in his room at the Heartland Inn. Furthermore, he claimed McDermott
only came to the room because he did not wish to be alone after his father’s
death. Beninga claimed he never discussed drugs with McDermott, he did not
ask her to deliver anything to him the night of May 15, and he never
manufactured methamphetamine with her.
claimed
he
did
not
know
if
On cross-examination, Beninga
McDermott
knew
how
to
manufacture
methamphetamine. He also admitted he had been to her room at the Extended
Stay Inn as recently as May 12, but he said he had seen no items related to
methamphetamine manufacturing at that time.
The testimony elicited by the State from Officer O’Neill and Potter was
aimed directly at discrediting defense testimony that McDermott was merely a
visitor in Beninga’s room and had no involvement with his methamphetamine
manufacturing and dealing.
It also discredited testimony from Beninga that
McDermott did not know how to manufacture methamphetamine and did not
have items related to methamphetamine manufacturing in her hotel room. The
disputed testimony was proper rebuttal evidence, and the district court did not
abuse its discretion by admitting it.
16
B. Hearsay. We also reject McDermott’s claim that the district court
erred in admitting Potter’s testimony because it contained inadmissible hearsay.
Hearsay is defined as “a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted,” and hearsay is generally inadmissible. Iowa R. Evid. 5.801(c);
State v. Summage, 532 N.W.2d 485, 487 (Iowa Ct. App. 1995).
However,
testimony is not hearsay if it is “received as relevant circumstantial evidence
reasonably necessary to complete the whole story of the crime charged.”
Summage, 532 N.W.2d at 488.
We find Potter’s statement concerning the
housekeeper’s discovery was necessary to explain why he contacted the police
to investigate McDermott’s room. The statement was not elicited by the State to
prove there was drug paraphernalia in the room, and the district court gave a
proper limiting instruction. We accordingly conclude the court did not abuse its
discretion in overruling McDermott’s hearsay objection.
V.
Conclusion
Because we find no merit in any of McDermott’s appellate claims, we
affirm
her
convictions
for
possession
of
more
than
five
grams
of
methamphetamine with the intent to deliver, conspiracy to manufacture more
than five grams of methamphetamine, possession of marijuana with the intent to
deliver, possession of ephedrine and/or pseudoephedrine with the intent to
manufacture methamphetamine, and a drug tax stamp violation.
AFFIRMED.
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