STATE OF IOWA, Plaintiff - Appellee, vs. NANCY JANE QUIGLEY , Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-769 / 07-2005
Filed October 15, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
NANCY JANE QUIGLEY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Marshall County, Michael J. Moon,
Judge.
Nancy
Quigley
appeals
her
conviction
for
possession
of
methamphetamine (more than five grams) with intent to deliver and a drug tax
stamp violation. REVERSED AND REMANDED FOR DISMISSAL.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
General, Jennifer Miller, County Attorney, and James S. Scheetz, Assistant
County Attorney, for appellee.
Considered by Mahan, P.J., and Vaitheswaran and Doyle, JJ.
2
DOYLE, J.
Nancy Quigley appeals her conviction, following jury trial, for possession
of methamphetamine (more than five grams) with intent to deliver and a drug tax
stamp violation. On appeal she argues (1) there was insufficient evidence to
support the finding of guilt; (2) her trial counsel was ineffective in failing to insure
the trial court admonished or instructed the jury to disregard prejudicial testimony
and in failing to object to hearsay statements; and (3) the district court erred in
ruling on her post-trial motions without a hearing. Because we conclude the
State failed to prove possession, we reverse and remand for dismissal.
I. Background Facts and Proceedings.
Around noon on May 4, 2007, Marshalltown detective David Powell and
Tama County deputy sheriff Bruce Rhoads were conducting surveillance of a
“known drug house” in Marshalltown located at 916 South Center Street. Powell
observed a car registered to Christina Dilly park on High Street around the corner
from the house under surveillance. Two females exited the vehicle and went into
the house. A short time later, the females exited the house, returned to the car,
and drove away east on High Street. Powell, in an unmarked vehicle, followed
the car, which turned right on First Avenue, then left on Helm Street, then right on
South Second Street, and finally left on East South Street. Powell did not see
anything tossed from the car, but lost sight of it several times during the chase.
He called Officer Christopher Roush for assistance. Roush stopped the car in
the 500 block of East South Street.
Dilly was driving, and Quigley was in the front passenger seat. When
asked for her name, Quigley gave a name other than Nancy Quigley. During a
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search, $3828 in cash and a glass methamphetamine pipe were found in
Quigley’s pocket. When asked about the money, Quigley said it was Dilly’s.
Quigley was arrested.
Powell took Quigley’s cell phone and testified that it
constantly rang and when he answered it, people gave responses that indicated
to him that they were looking to buy drugs. The car was searched after it was
impounded. A backpack was found on passenger side of the front seat. The
backpack contained numerous small plastic bags and a bag containing fourteen
grams of a white substance, which later tested negative for the presence of
controlled substances.
The backpack also contained numerous other items,
including a glass methamphetamine pipe. Three cell phones were found on the
front seat, and four cell phone chargers were found in the car. Another blue pack
or duffel bag was found on the rear seat. It contained a Vector digital scale and
some plastic pen tubes. A pillowcase containing a glass bong was found in the
trunk.
At about three o’clock that afternoon, Carol Spencer, who lived at 1101
South Second Avenue, discovered a metal box containing several bags of
“crystally” substances in her driveway. Her house is along the route of travel
taken by Dilly’s vehicle during the chase. Spencer later turned the items over to
the police. The box contained five plastic bags. The substance in the bags
tested positive for methamphetamine and weighed 32.35 grams. Testing did not
reveal any identifiable fingerprints on the metal box or the plastic bags.
On direct examination, Dilly testified as follows:
Q. Was Nancy doing anything with her hands while you
were being followed by the car before you saw the squad car or the
police car with lights? A. I mean she was movin’ around a lot, but I
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don’t really know for sure like what she was doing’ just cuz’ I’m
like—I mean I’m in a residential area and I’m not knowin’ where to
go, so I’m kind of like movin’ quick reaction and I’m tryin’ not to
wreck us. You know, there’s kids, a school right there, everything,
and so I wasn’t really paying much attention to what she was doin’
other than talkin’ to her and listenin’.
....
Q. And what was she doing with her hands? . . . A. Just
movin’ around. I mean I wasn’t—I wasn’t payin’—you know, I
wasn’t directly looking at her. I was lookin’ ahead of me, and I had
never like been in a situation like that before, you know, so I really
wasn’t payin’ attention to what she was doin’. I mean she could
see her move around out of the corner of my eye. But, for the most
part, I’m watching behind me and in front of me so I don’t crash into
anybody and then so I can see what this person behind me was
doin’.
....
A. —all I’m saying is I did not see her—I don’t know if what she
threw out was drugs or whatever. I’m just sayin’ I seen her move
around, you know, because out of the corner of my eye I can see
movement, you know, we’re both in the front seat.
Q. But you saw her throw things out of the car, correct?
A. Possibly.
On cross-examination, Dilly testified:
Q. And you never actually saw anything go out the window;
is that correct? A. Right. I mean I just seen a lot of movement,
you now. I mean I don’t know how to explain it. She was just
movin’ around and you can see things out of the corner of your eye,
still sittin’ there, still movin’, you know. And she’s also lookin’ back
at me, you know. I mean so I don’t—it’s possible, you know, but I
don’t think so. I just seen movement. I can’t say for sure that I
seen her throw anything out the window.
After the jury trial, Quigley was found guilty of the crime of possession of
methamphetamine with intent to deliver and the crime of failing to affix a drug tax
stamp. Quigley now appeals.
II. Scope and Standard of Review.
We review sufficiency of the evidence claims for errors at law. Iowa R.
App. P. 6.4. We uphold a verdict if substantial evidence supports it. State v.
5
Weaver, 608 N.W.2d 797, 803 (Iowa 2000). “Evidence is substantial if it would
convince a rational fact finder that the defendant is guilty beyond a reasonable
doubt.” State v. Biddle, 652 N.W.2d 191, 197 (Iowa 2002). We consider all
record evidence, not just the evidence supporting guilt, when making sufficiency
of the evidence determinations. State v. Quinn, 691 N.W.2d 403, 407 (Iowa
2005). Direct and circumstantial evidence are equally probative. Iowa R. App. P.
6.14(6)(p).
We view the evidence in the light most favorable to the State,
“including legitimate inferences and presumptions that may fairly and reasonably
be deduced from the record evidence.” Biddle, 652 N.W.2d at 197. “The State
must prove every fact necessary to constitute the crime with which the defendant
is charged.” State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002). “The evidence
must raise a fair inference of guilt and do more than create speculation,
suspicion, or conjecture.” Id.
III. The Merits.
Quigley contends there was not sufficient evidence to conclude she had
possession of the methamphetamine. No direct evidence was presented at trial
to establish Quigley had possession of the methamphetamine. There was no
evidence that Quigley had possession of the tin and five small bags of
methamphetamine prior to the chase.
Neither Detective Powell nor Officer
Roush observed any items being thrown from Dilly’s car during the chase. Dilly
testified she was not watching Quigley while driving the car, and could not testify
that she observed Quigley toss anything out the window. Quigley’s fingerprints
were not found on the tin or the plastic bags. The tin and plastic bags containing
the methamphetamine were not discovered until some hours after the chase.
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Spencer testified that she knew there had been other instances of drug arrests
made in her neighborhood and that she had heard about drug activity in the
blocks around her residence.
The law is clear that a jury verdict of guilty can be supported by
circumstantial evidence alone.
State v. Moses, 320 N.W.2d 581,586 (Iowa
1982); State v. O’Connell, 275 N.W.2d 197, 205 (Iowa 1979). However, this in
no way relieves the State of its burden of proof, which is beyond a reasonable
doubt. We do not believe the circumstantial evidence presented at trial rose to
the level to convict Quigley. Evidence must raise a fair inference of guilt and do
more than create speculation, suspicion, or conjecture. See Webb, 648 N.W.2d
at 76. There was no evidence that Quigley possessed the methamphetamine
before getting into Dilly’s car. Dilly did not see Quigley throw a tin from the car
during the chase. Although the officers chasing the car lost sight of it briefly,
neither officer observed anything being tossed from the car. Similar evidence to
the tin and plastic bag of methamphetamine was not found in the car.
We
conclude the evidence does not “allow a reasonable inference that the defendant
. . . had control and dominion over the contraband” she was charged with
possessing. State v. Cashen, 666 N.W.2d 566, 571 (Iowa 2003). Given the
circumstances above, the evidence was insufficient to prove beyond a
reasonable
doubt
that
Quigley
had
dominion
and
control
over
the
methamphetamine. If the underlying drug charge fails, it follows that Quigley
cannot be guilty of a violation of section 435B.3 or section 435B.12 for failing to
affix a tax stamp. We reverse the district court’s judgment of conviction and
sentence on the charges of possession and drug stamp violation and remand for
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an order of dismissal. Our disposition of the case renders it unnecessary to
address Quigley’s ineffective assistance of counsel claim or her claim the district
court erred in ruling on her post-trial motions without a hearing.
REVERSED AND REMANDED FOR DISMISSAL.
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