STATE OF IOWA, Plaintiff-Appellee, vs. RYAN RICHARD JORGENSEN, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-577 / 07-1241
Filed August 19, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RYAN RICHARD JORGENSEN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Michael D. Huppert,
Judge.
Ryan Jorgensen appeals following conviction and sentence for three
counts of possession of a controlled substance with intent to deliver and failure to
possess a tax stamp. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney
General, John P. Sarcone, County Attorney, and Stephanie Cox, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., Potterfield, 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.
Ryan Jorgensen appeals following conviction and sentence for one count
of possession of a controlled substance (between 100 and 500 grams of cocaine)
with intent to deliver; one count of possession of a controlled substance (LSD)
with intent to deliver; one count of possession of a controlled substance (ecstasy)
with intent to deliver; and three counts of failure to possess a tax stamp. We
affirm.
I. Background Facts and Proceedings.
After participating in two controlled buys of cocaine from Ryan Jorgensen,
officers executed a search warrant at his apartment and uncovered several types
of drugs, materials used to package drugs, and other dealing paraphernalia.
Specifically, officers found individually wrapped plastic bags containing a white
powder
(later
determined
to
be
cocaine
salt
hydrochloride)
weighing
approximately a half ounce each; ecstasy pills; a sheet containing eighteen “hits”
of LSD; marijuana; a mirror; scissors; vials; rolling papers; a glass pipe; a digital
scale; cornstarch (a common cutting agent for cocaine); nearly $2000 in cash;
two cell phones; and handwritten notes listing dollar amounts, dates, amounts,
weights, and names. Most of these items were found neatly organized in a shoe
box in Jorgensen’s bedroom closet.
After a jury trial, Jorgensen was convicted and sentenced for one count of
possession of a controlled substance (between 100 and 500 grams of cocaine)
with intent to deliver; one count of possession of a controlled substance (LSD)
with intent to deliver; one count of possession of a controlled substance (ecstasy)
with intent to deliver; and three counts of failure to possess a tax stamp.
3
Jorgensen now appeals, arguing (1) the district court erred in allowing the State
to amend the trial information and (2) there was insufficient evidence to support
his conviction for possession of ecstasy with intent to deliver.
II. Merits.
A. Amendment of Trial Information.
Pursuant to Iowa Rule of Criminal Procedure 2.4(8)(a), a court may order
the trial information amended to correct errors or omissions in matters of form or
substance, unless (1) substantial rights of the defendant are prejudiced by the
amendment or (2) a wholly new or different offense is charged. The first part of
the rule is discretionary, and our review up to that point is for abuse of discretion.
State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997). An abuse of discretion occurs
when the trial court exercises its discretion “on grounds or for reasons clearly
untenable or to an extent clearly unreasonable.” State v. Parker, 747 N.W.2d
196, 203 (Iowa 2008). The second part of the rule limits the court’s discretion,
and therefore, our review for that part of the rule is for correction of errors at law.
Maghee, 573 N.W.2d at 5.
Jorgensen contends the court’s decision to allow the State to amend the
trial information to include an additional alternative of Iowa Code section
124.401(1)(b) (2007) resulted in a wholly new and different charge against him,
and that he was prejudiced by the amendment. The State originally charged
Jorgensen with violating section 124.401(1)(b)(2)(b), which prohibits possession
of between 100 and 500 grams of “cocaine, its salts, optical and geometric
isomers, and salts of isomers” with the intent to deliver. At trial, however, the
court granted the State’s request to amend the trial information to include the
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“catchall” provision of section 124.401(1)(b)(2)(d), which prohibits the possession
of any substance containing a detectable amount of cocaine.
Upon our careful review of the record, we find Jorgensen’s argument to be
without merit. First, the amendment did not result in a wholly new and different
charge against Jorgensen, because different alternatives to drug offenses are
treated as the same crime.
See, e.g., Maghee, 573 N.W.2d at 5.
Second,
Jorgensen was not prejudiced by the amendment. He was not, as he argues,
unfairly surprised by the allegation that the cocaine was not pure. A common
cutting agent for cocaine (cornstarch) was found along with the drugs in
Jorgensen’s apartment, and the first witness called by Jorgensen was a
criminalist who could not determine the cocaine level of the substance found at
Jorgensen’s apartment because he had not performed a purity analysis on it.
The amendment did not change Jorgensen’s defense strategy, and his counsel
did not request a continuance. See id. (noting that counsel’s failure to request
the traditionally appropriate remedy for a defendant’s claim of surprise—a
continuance—indicates counsel appeared ready to defend against the amended
charge). The district court did not err in allowing the amendment, and we affirm
as to this issue.
B. Sufficiency of the Evidence.
Jorgensen argues there was insufficient evidence to support his conviction
for possession of ecstasy with intent to deliver because the circumstantial
evidence relied upon by the State failed to establish he intended to deliver the
ecstasy found in his apartment. We review challenges to the sufficiency of the
evidence for the correction of errors of law. Iowa R. App. P. 6.4; State v. Keeton,
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710 N.W.2d 531, 532 (Iowa 2006). In reviewing challenges to the sufficiency of
the evidence supporting a guilty verdict, 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. Keeton, 710 N.W.2d at 532.
Jorgensen contends the circumstantial evidence in this case supports the
theory that he did not sell ecstasy; but rather, that the ecstasy pills found in his
apartment were for his own personal use.
We disagree.1
Officers found
seventeen ecstasy pills in the same shoebox in Jorgensen’s closet as his other
carefully organized drugs and dealing paraphernalia.
Jorgensen’s testimony
indicated he worked in a club as a disc jockey, but that he made most of his living
as a drug dealer.
He also testified that ecstasy is a “club drug” due to the
location it is usually sold.
Furthermore, the history on Jorgensen’s cell phone showed text
messages sent to and from Jorgensen in the days before his arrest containing
references to ecstasy. Several texts asked whether Jorgensen had any “disco
biscuits” or “E,” to which Jorgensen replied, “Nope. The stuff in town is bunk. If
you do find some, don’t buy if they’re yellow or green.
They’re no good.”
Although Jorgensen denied having “pills,” or ecstasy, “right offhand,” he
promised to “try a couple of people” to find some.
1
We note that “direct and circumstantial are equally probative” in proving guilt beyond a
reasonable doubt. State v. Bentley, 757 N.W.2d 257, 262 (Iowa 2008). “Circumstantial
evidence is particularly valuable when proving a mental state like intent which is seldom
susceptible to proof by direct evidence.” State v. Clarke, 475 N.W.2d 193, 197 (Iowa
1991). In evaluating circumstantial evidence to prove intent in drug cases, we consider
the “manner of packaging the substance; the presence of weighing devices; and
existence of other paraphernalia commonly used in drug dealing.” State v. Luter, 346
N.W.2d 802, 809 (Iowa 1984), superseded by statute, Iowa Code § 808.3 (Supp. 1985).
6
Considering the evidence in the record in the light most favorable to the
State and making all reasonable inferences that may fairly be drawn, we find the
circumstantial evidence in this case substantially supports the jury’s finding that
Jorgensen did possess ecstasy with the intent to deliver it. Finding no error, we
affirm.
AFFIRMED.
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