State v. Fintel, 03-0889.

• Decision Date: 10 November 2004
• Docket Number: No. 03-0889.,03-0889.
• Citation: 689 N.W.2d 95
• Parties: STATE of Iowa, Appellee, v. Douglas Donald FINTEL, Appellant.
• Court: Iowa Supreme Court

689 N.W.2d 95

STATE of Iowa, Appellee, v. Douglas Donald FINTEL, Appellant.

No. 03-0889.

Supreme Court of Iowa.

November 10, 2004.

Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee. CARTER, Justice.

Defendant, Douglas Fintel, appeals from his conviction and sentence for conspiracy to manufacture methamphetamine in violation of Iowa Code section 124.401(1)(b)(7) (2001). He urges that (1) the jury instructions were confusing and led to an inconsistent verdict, (2) there was insufficient evidence of a conspiracy, (3) the sentencing enhancement imposed pursuant to Iowa Code section 124.401C was not applicable, and (4) his trial counsel provided ineffective assistance. After reviewing the record and considering the arguments presented, we agree that the sentencing enhancement contained in section 124.401C should not have been applied to defendant's sentence. In all other respects, we affirm the judgment of the district court. Shortly after midnight on December 5, 2002, the Waterloo Police Department dispatched several officers to an apartment complex located at 1308 West Fourth Street. The police officers were sent to investigate a complaint from a resident of the complex. The complaint concerned a strong smell of ammonia coming from an apartment within the complex.

Officers Allspach and Saunders were the first to arrive at the apartment complex. Officer Allspach testified that, when he opened the main entrance door to the apartment building, he was overwhelmed by the smell of ether. Officers Nemmers, Carter, Gehrke, Rulapaugh, and Sullivan were dispatched to assist Officers Allspach and Saunders. These officers arrived at the apartment complex approximately five minutes after Officers Allspach and Saunders.

The police officers decided to evacuate the residents of the apartment complex. The officers also determined that the ammonia and ether smells were coming from apartment number five. This determination was based on the observations of several officers who saw an individual sitting on a chair or stool surrounded by plastic jugs and glass jars with tubing coming out of a plastic jug in apartment number five. Specifically, Officers Allspach, Saunders, Nemmers, and Rulapaugh testified that they observed this individual through a basement window to apartment number five. Additionally, Officers Allspach, Saunders, and Nemmers testified that they believed the individual they observed was "cooking" methamphetamine. This individual was identified as Randy Corsi.

After determining that the ammonia and ether smells were coming from apartment five and that methamphetamine was likely being manufactured in the apartment, the officers decided to enter the apartment and remove its occupants. The officers broke through the door to the apartment and ordered its occupants to the ground. The individuals that occupied the apartment were taken into custody and removed from the apartment.

Officer Sullivan transported the defendant from the apartment complex to the Waterloo Police Department. The defendant waived his Miranda rights and spoke with Officer Sullivan.¹ Defendant told Officer Sullivan that he lived at apartment number five and shared the rent with Cheryl Refshauge, who also lived in the apartment. Defendant also told Officer Sullivan that he knew methamphetamine was being produced in the apartment and that he knew it was wrong, but his drug addiction allowed it to happen. Defendant denied cooking the methamphetamine, procuring any of the ingredients, or being involved in any manner with the methamphetamine-making process.

Defendant also spoke with Officer Gehrke.² Defendant told Officer Gehrke that he lived at apartment number five. He also told Officer Gehrke that he knew the reason for the police being at his apartment complex and that he knew what had been going on in his apartment before the police arrived. Defendant also acknowledged that he knew the substances that were in his apartment, including acid and anhydrous ammonia.

Cheryl Refshauge testified that both she and the defendant lived in apartment number five. She testified that the defendant had lived in her apartment, renting one of the two bedrooms, for three to four months. Refshauge also testified that she did not see the defendant in her bedroom where the methamphetamine was being manufactured or see him use methamphetamine that night. However, Refshauge testified that, in the months prior to December 4, 2002, she had witnessed the defendant use methamphetamine.

Defendant testified that, on the evening of December 4, 2002, he had dinner and hung out with Cheryl Refshauge, Randy Corsi, and Guy Fremont in his apartment. Sometime after 11 p.m., Refshauge and Corsi left the apartment to buy beer at Kwik Star, which is a ten-minute walk from the apartment. Approximately ten to fifteen minutes after Refshauge and Corsi left, Bruce Fuller and Joe McAhren came to the apartment.

Defendant testified that Fuller and McAhren walked into the apartment without knocking. Defendant further testified that Fuller was carrying a small plastic bowl and a duffle bag. Upon entering the apartment, Fuller asked, "Does anyone want to get high?" Fuller then went into the defendant's bedroom. Defendant testified that he followed Fuller into his bedroom in order to get high.

While inside defendant's bedroom, Fuller took something out of the duffle bag and began mixing it in the plastic bowl. Defendant stood by Fuller while he was mixing the contents of the bowl. Defendant testified that, when the fumes from the bowl became "really really bad," he asked Fuller to take the mixture out of his room. Defendant further testified that, after being asked three times to leave, Fuller exited his bedroom and went to Refshauge's bedroom with the plastic bowl.

Defendant testified that he wanted Fuller to take the bowl and its contents out of the apartment, so he went to Refshauge's bedroom and asked Fuller to leave. Defendant further testified that he found the door to Refshauge's bedroom locked. He pounded on the door and asked Fuller to leave the apartment. Around this time, Ms. Refshauge returned to the apartment from the Kwik Star and became upset when she learned what was happening in her bedroom. At this point, defendant testified that he returned to his room and told Ms. Refshauge to deal with the situation because the individuals involved were her friends and were in her bedroom. The defendant stayed in his room until the police entered the apartment and took everyone outside.

Bruce Fuller testified that he was at defendant's apartment on December 4, 2002. He also testified that he went to the apartment in order to "bubble dope." Fuller testified that he procured all the ingredients for the methamphetamine himself and that no one helped him in the process of making the methamphetamine.

I. Standard of Review.

Alleged errors in jury instructions are reviewed for corrections of errors at law. Iowa R.App. P. 6.4; State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996). Error in giving a jury instruction does not merit reversal unless it results in prejudice to the defendant. Kellogg, 542 N.W.2d at 516.

Challenges to the sufficiency of the evidence supporting a guilty verdict are reviewed for correction of errors at law. State v. Webb, 648 N.W.2d 72, 75 (Iowa 2002). The verdict must be supported by substantial evidence. Id. Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id. at 76. The evidence is reviewed in the light most favorable to the State and all of the evidence presented at trial, not just evidence that supports the verdict, is considered. Id. The State has the burden to prove every fact necessary to constitute the crime with which the defendant is charged, and the evidence presented must raise a fair inference of guilt and do more than create speculation, suspicion, or conjecture. Id.

Issues of statutory interpretation are also reviewed for errors at law. State v. Cartee, 577 N.W.2d 649, 652 (Iowa 1998). Review of an allegation of ineffective assistance of counsel is de novo. State v. Bergmann, 600 N.W.2d 311, 313 (Iowa 1999).

II. Whether Jury Instructions 17 and 18 Created Confusion Among the Jurors Because They Acquitted the Defendant of Manufacturing Methamphetamine, but Convicted Him of Conspiracy to Manufacture Methamphetamine, Thereby Raising Issues of Double Jeopardy and Collateral Estoppel.

A. Arguments. Defendant argues jury Instructions 17 and 18 are cumulative, confusing, and prejudicial because alternative "A" in instruction 18 amounts to a restatement of Instruction 17. Defendant maintains jury confusion is apparent because he was acquitted of the manufacturing charge (Instruction 17), but convicted on the charge of conspiracy to manufacture methamphetamine (Instruction 18). Defendant contends that double jeopardy is at issue because, based on the confusing nature of Instructions 17 and 18, he was convicted of the same crime in which he was acquitted. Defendant further argues collateral estoppel is at issue because the prior proceeding (the trial) demonstrates that the jury acquitted him on the same basis and employing the same facts it used to convict him.

B. Analysis. Iowa Code section 124.401(1) provides in pertinent part:

[I]t is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance ... or to act with, enter into a common scheme or design with, or conspire with one or more other persons to manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance.

Instruction 17 provided that, in order to prove defendant guilty of...