STATE OF IOWA, Plaintiff-Appellee, vs. JAVERIOUS TAVON HENDERSON, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-373 / 08-0709
Filed June 17, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JAVERIOUS TAVON HENDERSON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Thomas N.
Bower, Judge.
Javerious Henderson appeals his conviction for possession of cocaine
base with intent to deliver. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Dennis D. Hendrickson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Bradley Walz, Assistant
County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
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DOYLE, J.
Javerious Henderson appeals his conviction for possession of cocaine
base with intent to deliver.
He contends there was insufficient evidence to
support his conviction. We affirm.
I. Background Facts and Proceedings.
Shortly after midnight on January 9, 2008, Waterloo Police Officers Ritter
and McGeough stopped a minivan with a broken tail light. Officer Ritter went to
the driver’s side front window and Officer McGeough went to the passenger’s
side front window. When the windows of the van were rolled down, the officers
smelled a strong odor of marijuana coming from inside. Henderson was the
driver of the van, and three passengers were with him.
Officer McGeough
observed that the top of Henderson’s pants were pulled down below his thighs
and almost all of his boxer shorts were exposed. Officer McGeough testified that
in his experience, the state of Henderson’s pants indicated the possible
concealment of drugs. The officers then requested backup.
Officer Bovy arrived shortly thereafter and asked Henderson to step out of
the van. Officer Bovy patted Henderson down and shook the legs of his pants.
An object fell out of Henderson’s right pant leg. Henderson moved his foot over
the object in an attempt to conceal it, and the officers restrained him. Officer
Bovy picked up the object, and observed it was a small plastic bag appearing to
contain individually wrapped crack cocaine rocks. Officer McGeough observed
there were more than ten wrapped rocks in the small plastic bag.
The officers searched the van and did not find any devices or
paraphernalia used for smoking crack cocaine rocks or any other indications that
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crack cocaine had been or was to be personally used. Additionally, no scales for
weighing the crack cocaine rocks were found in the van.
Henderson was transported to the police station and strip searched. Nine
dollars were found in his left sock, and a wrapped crack cocaine rock was found
in his left shoe. Nothing further was found on Henderson’s person.
The plastic bag that had fallen from Henderson’s pants at the scene was
sent to the Iowa Department of Criminal Investigations (DCI) for testing. The DCI
determined the plastic bag contained sixteen wrapped rocks of cocaine base
(crack cocaine). The net weight of each of the rocks was 0.05 to 0.12 grams.
On January 18, 2008, Henderson was charged by trial information with,
among other things, possession of cocaine case with the intent to deliver in
violation of Iowa Code section 124.401(1)(c) (2007). At trial, Officers McGeough
and Bovy both testified that in their experience, the number of crack cocaine
rocks found on Henderson was not consistent with personal use of the drug.
Officer McGeough testified that based upon his experience and training,
generally people who personally use crack buy a rock or two and smoke it up
right away, and that very small amounts of crack cocaine are found upon persons
who personally use crack cocaine. Officer Bovy also testified that the way the
crack cocaine rocks were packaged in the plastic bag was the common way of
packaging drugs for sale. Officer Galbraith, a Waterloo police officer assigned to
the Tri-County Drug Enforcement Task Force, testified that the packaging of the
rocks in the small plastic bag from Henderson’s pants was consistent with crack
cocaine that was packaged for sale and distribution. Officer Galbraith testified
that street value of the rocks was approximately $160—$10 per rock. Officer
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Galbraith testified that although the rocks found in the plastic bag were smaller
dosage units of crack cocaine, it was his opinion the rocks were for sale and
distribution and not for personal use, and testified he believed his opinion was
further substantiated by the fact that there were no smoking devices found on
Henderson or in the vehicle.
The jury ultimately found Henderson guilty of
possession with intent to deliver.
Henderson now appeals.
II. Scope and Standard of Review.
We review challenges to the sufficiency of the evidence for errors at law.
State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003). We will uphold a verdict if
substantial evidence supports it.
Id.
Evidence is considered substantial if it
would convince a rational fact finder the defendant is guilty beyond a reasonable
doubt.
Id.
We review the evidence, including legitimate inferences and
presumptions that may fairly be deduced from the evidence, in the light most
favorable to the State.
Id.
The State has the burden to prove every fact
necessary to constitute the crimes with which the defendant is charged. Id. The
evidence presented must raise a fair inference of guilt and do more than create
speculation, suspicion, or conjecture. Id.
III. Discussion.
On appeal, Henderson argues there was insufficient evidence to convict
him of possession with intent to deliver. Henderson points out that he was not in
possession of substantial amounts of currency, there had been no controlled
buys and no items associated with drug sales were found, and the total amount
of crack cocaine found was only 0.68 grams, a small amount.
The State
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counters that error was not preserved.
We will bypass the State’s error
preservation concerns and proceed to the merits. State v. Taylor, 596 N.W.2d
55, 56 (Iowa 1999).
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. 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. . . . 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.
State v. Grant, 722 N.W.2d 645, 647-48 (Iowa 2006) (citations and quotations
omitted).
Here, Henderson was found in possession of a large quantity of crack
cocaine rocks, and no devices for his personal use of the drug were found on his
person or in the van. These facts, coupled with the packaging of the drugs and
the expert testimony of experienced police officers, were sufficient evidence for a
reasonable fact finder to conclude Henderson possessed the drugs with the
intent to deliver them.
See id. at 648.
We therefore conclude substantial
evidence supports the jury’s finding that Henderson possessed the drugs with the
intent to deliver them in violation of Iowa Code section 124.401(1)(c).
Accordingly, we affirm Henderson’s conviction.
AFFIRMED.
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