STATE OF IOWA, Plaintiff-Appellee, vs. MIGUEL TRUJILLO, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-524 / 08-1073
Filed August 19, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MIGUEL TRUJILLO,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark D. Cleve,
Judge.
Miguel Trujillo appeals following conviction and sentence for possession of
a controlled substance with intent to deliver and failure to possess a tax stamp.
AFFIRMED.
Murray W. Bell, Davenport, for appellant.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant
Attorney General, Michael J. Walton, County Attorney, and Kelly Cunningham,
Assistant County Attorney, for appellee.
Considered by Sackett, C.J., Mansfield, J., and Huitink, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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HUITINK, S.J.
Miguel Trujillo appeals following conviction and sentence for possession of
a controlled substance (more than 500 grams of powder cocaine) with intent to
deliver and failure to possess a tax stamp. Trujillo argues (1) the district court
erred in failing to grant his motion for judgment of acquittal when there was
insufficient evidence to support his conviction on the drug possession charge;
(2) the court erred in denying a codefendant‟s challenge to the jury instructions,
and alternatively, that his trial counsel was ineffective in failing to preserve the
issue; and (3) the court abused its discretion in overruling his motion for a new
trial when the verdict was contrary to the weight of the evidence. We affirm.
I. Background Facts and Proceedings.
This case began when Davenport police learned that a Hispanic male
driving a champagne-colored Chevrolet Silverado with California license plates
was selling cocaine out of 524 North Lincoln Court, an older home that had been
converted to four separate apartments. On February 2, 2008, officers conducted
a traffic stop on the Silverado as it left the apartment building. The driver, Miguel
Trujillo, matched the description of the Hispanic male and the Silverado was
registered in his name. A drug dog conducted an exterior sniff of the Silverado,
but did not alert, and Trujillo was allowed to leave. Officers continued to survey
the apartment building, but did not see the Silverado again after the stop.1
Thereafter, officers developed a confidential informant to engage in a
controlled buy and provide more information about the drug operation at the
apartment building. On February 7, 2008, the confidential informant drove to the
1
Officers later learned Trujillo began driving his girlfriend‟s vehicle after the stop.
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apartment building to buy cocaine. Officers watched nearby from their vehicles
as a male walked down the driveway from the apartment building, approached
the confidential informant‟s vehicle, and sold the informant a one-fourth ounce of
cocaine for $180 of the police department‟s serialized bills. In order to identify
the seller, an undercover officer drove by and made eye contact with him. The
officer later identified the seller as codefendant, Jorge Perez.
After the drug deal, Perez walked back in the direction of the apartment
building, but entered the building using the back entrance. In order to determine
the apartment Perez had come from, officers knocked on the doors of every
apartment using the ruse that they were investigating recent car burglaries in the
area. No one answered at apartments 1, 2, and 4. Trujillo answered the officers‟
knocks at apartment 3. When questioned whether he had any vehicles that he
wanted the officers to check, Trujillo responded that he did not have any vehicles
outside.2 Trujillo then went inside the apartment to get Perez to translate for him.
The officers observed Trujillo was very nervous, his body was very shaky, and
his voice was trembling, and that Perez seemed to be in a hurry and wanted the
officers to leave as quickly as possible.
Based on Trujillo‟s and Perez‟s behavior, the officers believed there were
drugs in the building. After reporting their findings, the officers returned to the
apartment building ten to fifteen minutes later to secure the residence and obtain
2
Trujillo later revealed to officers that he had been driving a white Ford Explorer that
evening which was parked outside the apartment building. Although the officers‟ drug
dog alerted on the Explorer, nothing of evidentiary value was found in the vehicle.
4
permission to search the apartment.3 Trujillo and Perez allowed the officers into
the apartment, and the officers immediately noticed a razor with apparent
cocaine residue on the kitchen table. Trujillo and Perez, along with Trujillo‟s
daughter and her boyfriend, Claudia Trujillo and Andres Garcia, were kept inside
the apartment until a search warrant was obtained.
With the help of a drug dog, officers eventually discovered more than 500
grams of cocaine in various places inside and outside the apartment: in plastic
wrap inside a paper sack lodged in a snowbank on the north side of the building;
in numerous plastic bags inside a Fritos bag on the ground near the snowbank;
in the snow outside the bedroom door; in small bags above the ceiling tiles in the
hallway outside the apartment; and inside several coolers in a storage area in the
apartment building. Officers discovered two digital scales with cocaine residue
on them, one in the bedroom closet and one hidden under a large package of
toilet paper in the bathroom. Officers also found plastic bags, plastic wrap, and a
heat sealer consistent with that used to package the drugs found at the
apartment building.
Among the occupants‟ personal property, the officers found multiple cell
phones, the memory of one which contained several calls from the number the
confidential informant had used to set up the earlier controlled buy. Officers
seized $612 in cash from Trujillo, $160 in cash from Garcia, and $378 in cash
from Claudia Trujillo. The officers did not uncover the $180 in serialized bills
used in the controlled buy earlier that evening.
3
Due to the language barrier, the officers also secured a search warrant for the
apartment building.
5
The occupants (including Trujillo, Perez, Claudia Trujillo, and Andres
Garcia) were arrested and transported to the jail. An officer fluent in Spanish
interviewed Trujillo. In the interview, Trujillo stated that he lived in the apartment,
was unemployed, came from California, and was at the apartment at the time of
the controlled buy. Trujillo‟s girlfriend later testified that Trujillo travelled back
and forth to California often.4 Officers later learned that in the month prior to his
arrest, Trujillo had kept the average temperature of the apartment at twentyseven degrees. Officers also discovered Trujillo had entered the United States
from Mexico without permission and had wired $510 to an individual in Mexico in
the days leading to his arrest.
On February 15, 2008, Trujillo was charged with possession of a
controlled substance with intent to deliver and failure to affix a drug tax stamp.
Perez, Claudia Trujillo, and Garcia were similarly charged.5 Trujillo pleaded not
guilty.
Following a jury trial, Trujillo was convicted as charged.6 Thereafter,
Trujillo filed a motion in arrest of judgment or for a new trial. The court denied
the motion and sentenced Trujillo to an indeterminate term of imprisonment not
to exceed fifty years for the drug charge and up to five years on the tax stamp
charge, to be run concurrently. Trujillo now appeals.
Trujillo‟s wife and children reside in California.
The court later dismissed charges against Claudia Trujillo and Garcia.
6
The jury also found Perez convicted as charged. Perez has appealed his conviction
and sentence. His appeal is currently before our court in State v. Perez, No. 08-0991.
4
5
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II. Merits.
A. Sufficiency of the Evidence.
The jury was instructed that the State had to establish the following in
order to prove Trujillo possessed cocaine with intent to deliver:
1. On or about the 8th day of February, 2008, the defendant
knowingly possessed powder cocaine.
2. The defendant knew that the substance possessed was
powder cocaine.
3. The defendant possessed the substance with the specific
intent to deliver the controlled substance.
The jury was further instructed it could convict Trujillo either as the principal or as
an aider and abettor.
Trujillo contends the State failed to produce sufficient
evidence to prove Trujillo was in possession of the cocaine at issue.
We review a challenge on the sufficiency of the evidence for errors at law.
State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). The State bears the burden
of proving every element of the crime with which Trujillo is charged. State v.
Gibbs, 239 N.W.2d 866, 867 (Iowa 1976). We consider all of the evidence in the
record in the light most favorable to the State and make all reasonable inferences
that may fairly be drawn from the evidence. State v. Keeton, 710 N.W.2d 531,
532 (Iowa 2006).
A jury‟s verdict is binding on appeal if it is supported by
substantial evidence. Button, 622 N.W.2d at 483. Evidence is substantial when
a reasonable mind would recognize it sufficient to reach the same findings. State
v. Moorehead, 699 N.W.2d 667, 671 (Iowa 2005). “Evidence that only raises
suspicion, speculation or conjecture is not substantial.” State v. Lambert, 612
N.W.2d 810, 813 (Iowa 2000).
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Because no drugs were found on Trujillo‟s person, the State had to prove
Trujillo had constructive possession of the drugs. Possession is constructive
when the defendant has knowledge of the presence of the controlled substance
and the authority or right to maintain control over it. See State v. Carter, 696
N.W.2d 31, 38 (Iowa 2005); State v. Bash, 670 N.W.2d 135, 138 (Iowa 2003).
The peculiar facts of each case determine whether the defendant had
constructive possession of the controlled substance. State v. Webb, 648 N.W.2d
72, 79 (Iowa 2002). “Constructive possession cannot rest on mere proximity to
the controlled substance.” Carter, 696 N.W.2d at 40.
[T]he authority or right to maintain control includes something more
than the “raw physical ability” to exercise control over the controlled
substance. The defendant must have some proprietary interest or
an immediate right to control or reduce the controlled substance to
the defendant‟s possession.
State v. Bash, 670 N.W.2d 135, 139 (Iowa 2003). We consider a number of
factors in determining whether a defendant had constructive possession,
including: (1) the defendant‟s incriminating statements, (2) the defendant‟s
incriminating actions upon the police‟s discovery of drugs among or near the
defendant‟s personal belongings, (3) the defendant‟s fingerprints on packages
containing drugs, and (4) any other circumstances linking the defendant to the
drugs. State v. Kemp, 688 N.W.2d 785, 789 (Iowa 2004).
The record contains substantial evidence that Trujillo had constructive
possession of the cocaine found in and around the apartment building. With
regard to Trujillo‟s actions as a principal, officers initially began investigating this
case upon receipt of a tip (evidence of which was admitted at trial) that a
Hispanic male, driving a champagne-colored Chevrolet Silverado with California
8
plates, was selling cocaine out of an apartment at 524 North Lincoln Court.
Officers conducted a traffic stop on Trujillo as he drove the Silverado from the
apartment building. Trujillo matched the description of the drug dealer and the
Silverado was registered in his name.
When officers approached apartment 3, Trujillo answered the door and
told officers he lived in the apartment. However, he lied and said he did not have
any vehicles at the apartment.7 He appeared to be very nervous, his body was
very shaky, and his voice was trembling. Thereafter, officers found more 500
grams of cocaine in various places inside and outside the apartment building.
Officers also found plastic bags, wrap, and a heat sealer consistent with that
used to package the drugs found at the apartment; two digital scales and a razor
blade with cocaine residue on them; and a cell phone containing the number the
confidential informant had used to set up the earlier controlled buy.
In the month prior to his arrest, Trujillo kept the average temperature of
the apartment at twenty-seven degrees, suggesting Trujillo used the apartment
sporadically and for packaging and distribution of cocaine.
Trujillo was
unemployed, yet he had $612 in cash on his person at the time of his arrest and
had wired $510 to an individual in Mexico in the days leading to his arrest.
Trujillo‟s wife and children lived in California, and his girlfriend told officers Trujillo
went back and forth to California often.8 The evidence was sufficient to show
Trujillo acted as a principal.
7
False statements to investigating officers may indicate a consciousness of guilt. See,
e.g., State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993). The jury may infer guilt from such
probative circumstantial evidence. State v. Turner, 630 N.W.2d 601, 609 (Iowa 2001).
8
Officers testified that California is a source state for drugs.
9
Alternatively, we find substantial evidence supports the finding that Perez
was guilty as an aider and abettor. To support a conviction based on the theory
of aiding and abetting, the record must show Trujillo assented to or lent
countenance and approval to the criminal act either by active participation or by
encouraging in some manner prior to the time of its commission. State v. Smith,
739 N.W.2d 289, 293 (Iowa 2007). While mere presence at the scene of a crime
by itself is insufficient to prove aiding and abetting, it “need not be shown by
direct proof. It may be inferred from circumstantial evidence including presence,
companionship and conduct before and after the offense is committed.” Fryer v.
State, 325 N.W.2d 400, 406 (Iowa 1982).
The tip identified Trujillo as the individual selling cocaine out of the
apartment building. Officers saw codefendant Perez come out of the apartment,
sell one-quarter ounce of cocaine to the confidential informant for $180 in
serialized bills, and reenter the apartment through the back entrance after the
drug deal. Perez was then present at Trujillo‟s apartment when officers arrived to
search the apartment a short time later.
At the apartment, officers found cocaine, a razor blade and digital scale
with cocaine residue, and other tools and materials used for drug packaging in
and around the apartment building. Although officers did not witness Trujillo
handle the drugs, Trujillo “not only lent countenance and approval to the delivery
of a controlled substance, he made the transaction possible” by supplying and
packaging the drugs out of his apartment for the sale. See State v. Allen, 633
N.W.2d 752, 757 (Iowa 2001). We conclude the record contains substantial
10
evidence that Trujillo had constructive possession of cocaine as an aider and
abettor. We affirm as to this issue.
B. Jury Instruction.
Trujillo argues the district court erred in denying codefendant Perez‟s
proposal that Jury Instruction No. 15 contain additional language. We review
challenges to jury instructions for corrections of errors at law. Iowa R. App. P.
6.4; State v. Heemstra, 721 N.W.2d 549, 553 (Iowa 2006). “We review the trial
court‟s instructions „to determine whether they correctly state the law and are
supported by substantial evidence.‟” State v. McCall, 754 N.W.2d 868, 871 (Iowa
Ct. App. 2008).
The State contends Trujillo has failed to preserve error on this claim. We
agree. Iowa Rule of Civil Procedure 1.924 (2008) sets forth the rule for error
preservation for requested jury instructions as follows:
[A]ll objections to giving or failing to give any instruction must be
made in writing or dictated into the record . . . specifying the matter
objected to and on what grounds. No other grounds or objections
shall be asserted thereafter, or considered on appeal.
At the close of evidence, codefendant Perez proposed the court include
additional language to the jury instruction.
Trujillo failed to join in Perez‟s
proposal, or object on his own at that time. Trujillo has not preserved error on
this issue. See Bauer v. Cole, 467 N.W.2d 221, 224 (Iowa 1994) (holding to
preserve error for district court‟s failure to give a requested instruction, party must
specify “that part of the instruction which was requested and refused” and
“identify the particular points of law or questions of fact on which the court
supposedly erred by failing to instruct”).
11
Even if we assume, arguendo, that Trujillo has preserved error, we still
find his claim to be without merit. We agree with the district court that Jury
Instruction No. 15 was a correct statement of the law and was supported by
substantial evidence. McCall, 754 N.W.2d at 871. Furthermore, Trujillo does not
argue he was prejudiced by the court‟s decision. “Error in giving or refusing to
give” a jury instruction does not warrant reversal unless it results in prejudice to
the complaining party. Koenig v. Koenig, 766 N.W.2d 635, 637 (Iowa 2009).
Finding no error, we affirm as to this issue.
C. Ineffective Assistance of Counsel.
Trujillo alternatively argues his trial counsel was ineffective for failing to
object to Jury Instruction No. 15. We conduct a de novo review of ineffective
assistance of counsel claims. State v. Maxwell, 743 N.W.2d 185, 195 (Iowa
2008). To establish a claim of ineffective assistance of counsel, a defendant
must prove (1) counsel failed to perform an essential duty and (2) prejudice
resulted to the extent it denied the defendant a fair trial.
Id. Ordinarily, we
preserve ineffective assistance of counsel claims for postconviction proceedings
to allow the facts to be developed and give the allegedly ineffective attorney an
opportunity to explain his or her conduct, strategies, and tactical decisions. See
State v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008).
As we discussed above, the district court did not err in finding that Jury
Instruction No. 15 was a correct statement of the law and was supported by
substantial evidence. Trujillo‟s counsel was therefore not ineffective for failing to
preserve the issue or object to the instruction.
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D. Motion for New Trial.
Trujillo argues the court abused its discretion in overruling his motion for a
new trial when the verdict was contrary to the weight of the evidence. We review
the district court‟s denial of a new trial for correction of errors at law. Iowa R.
App. P. 6.4. Ultimately, we determine whether the court abused its discretion in
its ruling. State v. Belt, 505 N.W.2d 182, 184 (Iowa 1993). Trial courts have
wide discretion in deciding motions for new trials. State v. Ellis, 578 N.W.2d 655,
659 (Iowa 1998).
A trial court may grant a new trial when the verdict is contrary to the
weight of the evidence. Iowa R. Crim. P. 2.24(2)(b)(6); Ellis, 578 N.W.2d at 659.
A verdict is contrary to the weight of the evidence when one side of the issue is
supported by a greater amount of evidence than the other side.
Ellis, 578
N.W.2d at 658. This standard is broader than the sufficiency of the evidence
standard. State v. Nicher, 720 N.W.2d 547, 559 (Iowa 2006). For the reasons
set forth above, we conclude Trujillo‟s conviction was not contrary to the weight
of the evidence. The district court did not abuse its discretion in denying Trujillo‟s
motion for a new trial. We affirm as to this issue.
III. Conclusion.
Having considered all issues raised on appeal, we affirm.
AFFIRMED.
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