STATE OF IOWA, Plaintiff-Appellee, vs. DALE LEE SHORTER, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-581 / 08-0913
Filed September 2, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DALE LEE SHORTER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire,
Judge.
Dale Shorter appeals his conviction of possession of cocaine base.
REVERSED AND REMANDED FOR DISMISSAL.
Mark C. Smith, State Appellate Defender, and David Arthur Adams,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney
General, Michael J. Walton, County Attorney, and Robert E. Weinberg, Assistant
County Attorney, for appellee.
Considered by Vaitheswaran, P.J., Mansfield, J., and Zimmer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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ZIMMER, S.J.
Dale Shorter appeals his conviction following a jury trial of possession of
cocaine base. He contends there was not sufficient evidence to support a finding
that he constructively possessed a controlled substance.
We agree and
therefore reverse and remand for dismissal.
I. Background Facts and Proceedings.
The following facts are supported by the evidence presented at trial: At
about 5:15 p.m. on January 14, 2008, a team of law enforcement officers
executed a search warrant at the home of Robert Randolph. Randolph lived in
the home with Debbie Cole and Les Broom. Randolph’s home was a known
drug house. When the warrant was executed, the following five people were
present in the home: Randolph, his son Terrance Davis, Debbie Cole, Limmie
Brown, and the defendant, Dale Shorter.
One or more of the occupants of Randolph’s home observed the officers
approaching the residence. As officers got close to the front door they heard
someone yell that the “cops are here.”
Davenport Police Officer Michael
Greenleaf was the first to enter the residence. He saw Randolph seated in a
chair and ordered him to the floor. Greenleaf then observed Shorter “run from
[the] hallway and duck into a bedroom.” Shorter was found in the northeast
bedroom of the residence. At Shorter’s trial, Greenleaf testified that Terrance
Davis was found in the basement, Limmie Brown “was coming out of the
kitchen,”1 and Debbie Cole was in the northwest bedroom.2
1
2
Sergeant Kevin Smull testified Limmie Brown was located in the living room.
Sergeant Smull and Cole both testified Cole was located in the northeast bedroom.
3
After the residence and its occupants were secured, the officers searched
the premises. Officer Matthew Allers (a special agent with the Iowa Department
of Public Safety, Iowa Division of Narcotics Enforcement) found a plastic bag in
the toilet containing crack cocaine. The bag contained nine individually wrapped
rocks of cocaine base. The bathroom was off the hallway about five or six feet
from the door to the northeast bedroom.3
Debbie Cole and Limmie Brown were called as defense witnesses at trial.
Cole testified that she lived at the Randolph residence in the northeast bedroom,
which she shared with Les Broom. She stated she was in her bedroom the day
of the search. Cole further testified that Shorter had come to the house and
asked for Broom.
According to Cole, Shorter was sitting on the bed in the
northeast bedroom waiting for Broom to return when the officers entered the
residence.
Limmie Brown testified that she was at the Randolph residence on the day
of the search. She testified Shorter asked for Broom and then went directly to
the northeast bedroom when he arrived at the residence. Brown testified that
Shorter was in the bedroom talking to Cole when the police arrived.
Brown
stated she was sitting in the living room, as were Randolph and Terrance Davis,
when the police came to the door. She testified Davis saw the police and “got up
and he ran to the basement.” Brown went to the kitchen and then came back
and sat down.
3
During trial, the witnesses made frequent reference to a diagram of the house while
testifying. The diagram is not part of the record, and we are thus without its benefit.
4
Based on the results of the search, the State filed a three-count trial
information naming Robert Randolph and Dale Shorter as defendants. Count I
charged Randolph with sponsoring a gathering for use of controlled substances.
Count II charged Randolph with possession of a controlled substance. Only
Count III applied to the defendant, Dale Shorter. That count charged Shorter
with possession with intent to deliver cocaine base.
Shorter’s case proceeded to trial,4 and he was convicted of the lesserincluded offense of possession of cocaine base. At the close of the State’s
evidence, Shorter’s attorney moved for a judgment of acquittal alleging that the
State had failed to prove Shorter had actual or constructive possession of the
drugs found in the bathroom. The court denied the motion. Shorter renewed his
motion at the close of all the evidence, and the motion was again denied by the
court. This appeal followed. Shorter contends the district court erred in finding
there was sufficient evidence to support his conviction for possession of cocaine
base.
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.
Bash, 670 N.W.2d 135, 137 (Iowa 2003). “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
4
Randolph pleaded guilty to possession of a controlled substance.
5
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).
III. The Merits.
Unlawful possession of a controlled substance requires proof that the
defendant: (1) exercised dominion and control over the contraband, (2) had
knowledge of its presence, and (3) had knowledge that the material was a
controlled substance.
State v. Reeves, 209 N.W.2d 18, 21 (Iowa 1973).
Possession can be either actual or constructive. State v. Maghee, 573 N.W.2d 1,
10 (Iowa 1997). Actual possession occurs when the controlled substance is
found on the defendant’s person. State v. Atkinson, 620 N.W.2d 1, 3 (Iowa
2000). 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. Webb, 648 N.W.2d at 81.
It is undisputed that Shorter5 did not have actual possession of the
cocaine base because the officers did not find the controlled substance on his
person.
The question, then, is whether the defendant had constructive
possession of the plastic bag found in the toilet of Randolph’s home.
5
Shorter argues that it is far more likely that Davis, who had first seen the police
approach, deposited the drugs in the toilet before going to the basement to hide.
6
Our supreme court discussed the concept of constructive possession in
Reeves. The court stated:
(4) But dominion and control . . . by the accused over the
narcotic does not mean the narcotic needs to be found on his
person nor does it mean that he must have had sole and exclusive
use of the premises on which drugs are found.
(5) Constructive possession is all that is necessary and
occurs when the accused maintains control or a right to control the
narcotic; possession may be imputed when the contraband is found
in a place which is immediately and exclusively accessible to the
accused and subject to his dominion and control, or to the joint
dominion and control of the accused and another.
(6) If the premises on which the drugs are found are
exclusively accessible to the accused and subject to his use,
possession or control, knowledge of their presence on such
premises . . . coupled with his ability to maintain dominion and
control . . . may be inferred.
(7) Even if the accused does not have exclusive control of
the hiding place possession may be imputed if he has not
abandoned the narcotic and no other person has obtained
possession.
(8) Knowledge of the narcotic character . . . of the drug, as
well as of their presence . . . may be shown by the conduct,
behavior and declarations of the accused.
Reeves, 209 N.W.2d at 22 (emphasis added). The Reeves court further noted:
[W]here the accused has not been in exclusive possession of the
premises but only in joint possession, knowledge of the presence of
the substances on the premises and the ability to maintain control
over them by the accused will not be inferred but must be
established by proof. Such proof may consist either of evidence
establishing actual knowledge by the accused, or evidence of
incriminating statements or circumstances from which a jury might
lawfully infer knowledge by the accused of the presence of the
substances on the premises.
Id. at 23.
The Reeves court also observed that where circumstantial evidence alone
is relied on for an essential element of a possession charge, “the circumstances
must be entirely consistent with defendant’s guilt, wholly inconsistent with any
7
rational hypothesis of his innocence, and so convincing as to exclude any
reasonable doubt that defendant was guilty of the offense charged.” Id. at 21.
Proof of opportunity of access to the place where contraband is found will not,
without more, support a finding of unlawful possession. Id. at 22.
Shorter contends there was not sufficient evidence to conclude he had
constructive possession of the cocaine base found in the bathroom of Randolph’s
home. The State argues that Shorter’s possession of the drugs found in the toilet
can be inferred from his presence in the hallway, his proximity to the bathroom,
and his “flight when he saw Detective Greenleaf.” 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. In determining whether Shorter has
constructive possession of a controlled substance, we are guided by several
factors, including (1) incriminating statements made by the defendant, (2) the
defendant’s incriminating actions, (3) any fingerprints on the packages containing
the controlled substances, and (4) any other circumstances linking the defendant
to the controlled substances. Webb, 648 N.W.2d at 79.
For the reasons that follow, we do not believe the evidence presented at
trial rose to the level necessary to convict Shorter. The house searched by the
police did not belong to Shorter, and he did not live there. Shorter arrived at the
residence approximately one-half hour before the police approached the home to
execute the warrant. Police were aware there was drug activity in the home
before Shorter arrived.
Both Cole and Brown testified Shorter went into the
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northeast bedroom upon his arrival to wait for Les Broom, and that he was there
when the police arrived. No direct evidence was presented at trial to establish
Shorter had possession of the cocaine base prior to the raid. The drugs at issue
here were not in plain view. Neither Greenleaf nor any other officer observed
any items being thrown into the toilet during the search by Shorter, or any other
person. Greenleaf testified he could not see the entrance to the bathroom from
his position in the living room. No one observed Shorter in the bathroom. The
evidence does not establish how long the drugs had been in the toilet. The
officers were not able to testify that the water was swirling or that the tank was
filling when the drugs were discovered. No fingerprints were found on the outer
bag or any of the smaller plastic bags.
Shorter made no statements
acknowledging a connection to the drugs. Others in the house were in motion in
the home when the police arrived and could have thrown the drugs in the toilet.
To support a conviction, “evidence must raise a fair inference of guilt and
do more than create speculation, suspicion, or conjecture.” Webb, 648 N.W.2d
at 76.
We conclude the evidence presented in this case does not allow a
reasonable inference that the defendant had control and dominion over the
contraband he was charged with possessing.
Because the evidence was
insufficient to prove that Shorter had constructive possession of cocaine base,
we reverse the judgment of conviction and sentence on the charge of possession
and remand for an order of dismissal.
REVERSED AND REMANDED FOR DISMISSAL.
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