State v. Evans, 58859

Decision Date15 December 1976
Docket NumberNo. 58859,58859
Citation248 N.W.2d 521
PartiesSTATE of Iowa, Appellee, v. Terry Lee EVANS, Appellant.
CourtIowa Supreme Court

Ronald W. Kuntz, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Steven K. Sandblom, Asst. Atty. Gen., and Ray A. Fenton, County Atty., for appellee.

Heard before MOORE, C.J., and RAWLINGS, REES, REYNOLDSON and HARRIS, JJ.

HARRIS, Justice.

Defendant appeals two convictions of delivery of a controlled substance in violation of § 204.401(1), The Code. The violations, alleged to have occurred March 28 and April 5, 1975, were tried jointly under separate counts of a county attorney's information. Following an accommodation hearing it was determined defendant did not deliver as an accommodation so as to qualify for application of § 204.410, The Code. In this appeal defendant raises four assignments of error. We find each assignment to be without merit and accordingly affirm the trial court.

From the evidence presented the jury could have believed the following facts. Charles Cramer (Cramer) an officer with the Des Moines metropolitan area narcotics squad sought to purchase marijuana from Terry Lee Evans (defendant). Defendant informed Cramer he had no marijuana but would in about a week.

On March 28, 1975 Cramer again called defendant by phone and asked if defendant had any marijuana to sell. Defendant advised he had marijuana to sell at $25 an ounce. Cramer was directed to drop by defendant's home the same evening.

Cramer did so and found defendant, his wife, and several juveniles at the residence. Marijuana smoking occurred while Cramer was there. Defendant handed Cramer two ounces of what was purported to be marijuana and Cramer gave defendant $50. The substance involved was later chemically identified as marijuana.

On April 5, 1975 Cramer again called defendant seeking to purchase a quarter pound of marijuana. Defendant stated the price would be $20 per ounce and told Cramer to come to his residence the same evening. Cramer arrived there before defendant but waited for him.

When defendant arrived home he asked if Cramer still wanted the 'two lids.' Cramer replied affirmatively. Defendant began to package and weigh the marijuana from a larger supply which appeared to Cramer to consist of about one pound. Defendant reached into the supply with a small plastic bag and started filling it. When it appeared to be an ounce he placed it on scales to weigh it. Cramer picked up the plastic bag from the scales and stated it did not weigh an ounce. At this time defendant noticed officers running toward his home.

Defendant and his wife hid the marijuana. Defendant then let the officers into his home. The officers seized the marijuana previously mentioned. The officers then searched the residence and discovered and seized other marijuana. Defendant was arrested. Marijuana involved in the sale, as well as other marijuana seized, was later introduced into evidence in defendant's trial in the instant case.

Defendant elected to testify in his own behalf. He testified he sold the marijuana for a stranger. He stated the stranger told him that he (the stranger) had a sick mother in California, needed money, and had no time to sell the marijuana. Defendant stated the stranger gave him the marijuana and equipment necessary for selling it.

I. Defendant's first assignment asserts the trial court should have sustained his motion for directed verdict. At the close of State's evidence defendant moved for directed verdict on grounds the State did not prove the three elements of the offense of delivery of a controlled substance. The motion was overruled and defendant thereafter offered evidence in the form of his own testimony. After testifying the defendant rested his case and did not renew his motion for directed verdict.

The rule is well settled error may not be predicated on the denial of a motion for directed verdict at the close of the State's case where additional evidence is offered thereafter. State v. Ahern, 227 N.W.2d 164, 168 (Iowa 1975); State v. Hansen, 225 N.W.2d 343, 348 (Iowa 1975) and authorities. Defendant's first assignment is accordingly without merit.

II. In his second assignment defendant contends separate offenses which do not arise from the same transaction cannot be joined in a single information. Defendant argues the State did not show the March 28 and April 5 deliveries were parts of the same transaction. Since he believes the deliveries were not parts of the same transaction defendant concludes evidence of either delivery was inadmissible upon trial for the other delivery. See State v. Garren, 220 N.W.2d 898, 900 (Iowa 1974).

A county attorney may join several offenses in one information where they are presented in separate counts so long as they relate to the same transaction. State v. King, 225 N.W.2d 337 (Iowa 1975); State v. White, 223 N.W.2d 173 (Iowa 1974). The 'same transaction' portion of this requirement is modified somewhat in drug cases under the uniform controlled substance act by the terms of § 204.408, The Code, which provides:

'Information, indictments, trial, and sentencing for violations of this chapter may allege any number of violations of their provisions against one person and join one or more persons as defendants who it is alleged violated the same provisions in the same transaction or series of transactions and which involve common questions of law and fact. The several charges shall be set out in separate counts and each accused person shall be convicted or acquitted upon each count by separate verdict. Each accused person shall thereafter be sentenced upon each verdict of guilty. The court may consider such separate verdicts of guilty returned at the same time as one offense for the purpose of sentencing as provided in this chapter. The court may grant a severance and separate trial to any accused person jointly charged or indicted if it appears that substantial injustice would result to such accused person unless a separate trial was granted.'

It is to be noted the section expressly refers to alleged violations arising from the same transaction Or series of transactions and which involve common questions of law or fact. The section expressly provides for multiple offenses, allows joint criminal trials, and states rules for trying defendants together. The section also governs controlled substance prosecutions brought against a single defendant. A single defendant, as well as several defendants, may be called upon to defend separate prosecutions arising either from the same transaction or series of transactions.

The information in the instant case involved the March 28 delivery in count one and the April 5 delivery in count two. These two incidents were a part of the same series of transactions and involved common questions of law and fact. It was proper to try both counts in the same trial.

Defendant also argues the information procedure employed prejudiced him by creating confusion. Two counts of delivery were tried together. A separate charge of possession with intent to deliver was...

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7 cases
  • State v. Gibb
    • United States
    • Iowa Supreme Court
    • 18 Marzo 1981
    ...information or indictment, unless, for good cause shown, the trial court in its discretion determines otherwise." In State v. Evans, 248 N.W.2d 521, 523 (Iowa 1976), relying on the section 204.408 "series of transactions" language, we held defendant's two incidents of controlled substance d......
  • State v. Shive
    • United States
    • Missouri Court of Appeals
    • 22 Septiembre 1981
    ...Beard v. State, 327 N.E.2d 629 (Ind.App.1975); State v. City Court of City of Lafayette, 230 N.E.2d 776, 778 (Ind.1967); State v. Evans, 248 N.W.2d 521, 524 (Iowa 1976); Terry v. Commonwealth, 371 S.W.2d 862, 864 (Ky.App.1963); State v. Gladden, 260 La. 735, 257 So.2d 388, 393 (1972); State......
  • State v. Beyer, 59816
    • United States
    • Iowa Supreme Court
    • 19 Octubre 1977
    ...on failure to direct a verdict at close of State's evidence where, as here, defendant subsequently presented evidence. State v. Evans, 248 N.W.2d 521, 522 (Iowa 1976); State v. Conner, 241 N.W.2d 447, 460 (Iowa 1976). However, the motion made at the conclusion of all evidence preserved defe......
  • State v. Franzen
    • United States
    • Iowa Supreme Court
    • 17 Febrero 1993
    ...due process provision. Benton v. Maryland, 395 U.S. 784, 794-95, 89 S.Ct. 2056, 2063, 23 L.Ed.2d 707, 715-16 (1969); State v. Evans, 248 N.W.2d 521, 524 (Iowa 1976). The same constitutional standards for determining when jeopardy attaches must be applied equally in both federal and state co......
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