State v. Metcalf
| Decision Date | 21 December 1977 |
| Docket Number | No. 59871,59871 |
| Citation | 260 N.W.2d 857 |
| Parties | STATE of Iowa, Appellee, v. David Craig METCALF, Appellant. |
| Court | Iowa Supreme Court |
Beck, Pappajohn & Shriver, by R. L. Stephenson, Mason City, for appellant.
Richard C. Turner, Atty. Gen., Thomas A. Evans, Asst. Atty. Gen., and Clayton L. Wornson, Cerro Gordo County Atty., for appellee.
Considered en banc.
This appeal involves the question of the offenses which are included in a charge of possession of a controlled substance with intent to deliver for profit.
Officers searched the residence of defendant David Craig Metcalf under a warrant and seized drugs and drug paraphernalia, including heroin. After the officers gave defendant Miranda warnings, defendant made admissions regarding his drug activities.
The county attorney charged defendant with possession of heroin with intent to deliver for profit, contrary to § 204.401(1) of the 1975 Code. (While the words "for profit" were unnecessary in the charge, the county attorney added them by amendment.) Section 204.401(1) reads:
1. Except as authorized by this chapter, it is unlawful for any person to . . . possess with intent to . . . deliver, a controlled substance . . . .
2. (Counterfeit substances.)
3. (Simple possession.)
Defendant stood trial. At the conclusion of the evidence, the trial court delivered to counsel its instructions, in which the court proposed to submit two offenses to the jury for consideration: (1) possession with intent to deliver for profit and (2) simple possession as an included offense.
Defense counsel asked for submission of an additional included offense in his requested instruction 4, reading thus:
You are further instructed as follows: If you are convinced from a review of the evidence that the prosecution has proved all the elements of the crime of possession of heroin with intent to deliver but has failed to prove that defendant possessed with intent to deliver heroin for profit, you shall find the defendant guilty of an accommodation offense.
Defense counsel relied on amended § 204.410 which was in effect at the time of these events:
In a prosecution for unlawful delivery or possession with intent to deliver a controlled substance, if the prosecution proves that the defendant violated the provisions of section 204.401, subsection 1 but fails to prove that the defendant delivered or possessed with intent to deliver the controlled substance for the purpose of making a profit, the defendant shall be guilty of an accommodation offense and shall be sentenced as if he had been convicted of a violation of section 204.401, subsection 3. An accommodation offense may be proved as an included offense under a charge of delivering or possessing with intent to deliver a controlled substance in violation of section 204.401, subsection 1.
The trial court appears to have taken the following position: when the profit element is not proved in a prosecution under § 204.401(1), the punishment is the same as for simple possession under § 204.401(3); therefore the included offense is simple possession. In response to requested instruction 4 the trial court stated:
Well, the court will say with respect to Requested Number 4 that the statute provides that the included offense of simple possession is an included offense and the court is instructing on that included offense.
Defense counsel then stated:
To make it clear what the position of the defendant is, Your Honor, it is the defendant's contention that there is the first and major offense of possession with intent to deliver for a profit; there is the second and included offense of possession with intent to deliver, but not for a profit; and the third offense of possession. As I understand it, under the present instruction only the first and third of these are included and that's the reason we are offering Requested Instruction No. 4.
The county attorney next stated:
The State for the purposes of the record would state that the confusion, in our minds at least, created by the amendment to Section 204.410 is such that there appears to be at least a possibility that the request of the defense could be held by the Supreme Court to be a reasonable request, and for this reason the State would not oppose the inclusion of the requested instructions with appropriate other instructions as to the order of the offenses and so on.
The trial court adhered to its view and submitted the case on two offenses as originally proposed, stating to counsel:
The statute finally does away with the accommodation matter, which is not at any time, under the present statute, made an essential of the offense. Accommodation was a post-conviction procedure, and the purpose of the present statute is simply to avoid the cumbersome set-up, correctly enough, in requiring that the jury was required to hear the accommodation evidence in the original case. This statute plainly talks about what the included offense is, so the court has, in accordance with the statute, instructed on the two offenses.
I. The question in the appeal is whether the court should have submitted the accommodation offense as an included offense. To be an included offense a lesser offense must be included (1) legally and (2) factually. State v. Rosewall, 239 N.W.2d 171 (Iowa).
II. What crimes are legally involved in a charge under § 204.401(1) of possession with intent to deliver? Reading §§ 204.401(1) and 204.410 together, if the State proves, in addition to possession and intended delivery, that the delivery was for the purpose of making a profit, the more severe punishment in § 204.401(1) is inflicted. That, then, is the principal crime. If however the State does not prove the profit element then, to be sure, the defendant is "sentenced", by virtue of § 204.410, "as if he had been convicted" of simple possession, but he is "guilty" of what is labeled an "accommodation offense"; the statute provides that "the defendant shall be guilty of an accommodation offense". Section 204.410 continues: "An accommodation offense may be proved as an included offense under a charge of delivering or possessing with the intent to deliver a controlled substance in violation of section 204.401, subsection 1." Legally, therefore, three offenses are involved in a charge of possession with intent to deliver: (1) possession with intent to deliver for profit, (2) the accommodation offense, and (3) simple possession. Hence the accommodation offense also is a legally-included offense in such a charge; it involves an element which simple possession does not intent to deliver.
This must be so or a jury would have no place to go among the forms of verdict if the jury found the elements established except as to the profit element. A charge of possession with intent to deliver under § 204.401(1) involves three elements: the defendant (1) knowingly possessed a controlled substance, (2) with intent to deliver, (3) for profit. If the State introduces substantial evidence of all three elements, the jury is satisfied as to elements (1) and (2) but not as to (3), and the court submits only (a) possession with intent to deliver for profit and (b) simple possession, the jury has no form of verdict which really fits its finding, whereas the jury does have an appropriate verdict if the accommodation offense is also submitted. The danger to a defendant when only two forms are submitted is that the jurors may find the defendant guilty of intent to deliver for profit because they believe him guilty of more than simple possession.
Thus if the State introduces substantial evidence of possession, with intent to deliver, for profit, the court normally would submit possession with intent to deliver for profit, the accommodation offense, and simple possession. Of course, if the State introduces substantial evidence only of possession with intent to deliver, then the court would submit only the accommodation offense and simple possession.
III. Is the factual element in the two-step included-offense test satisfied here? Stated otherwise, does the record contain substantial evidence of the elements of the accommodation offense? The record contains abundant proof of "possession," and so that element may be placed aside. The question is whether substantial evidence also appears of "intent to deliver."
Preliminarily, two factors must be borne in mind. One is that a jury may believe some of the evidence and reject other evidence, or believe part of a witness' testimony and disbelieve another part. State v. McCullough, 226 N.W.2d 216, 217 (Iowa) (); State v. Menke, 227 N.W.2d 184 (Iowa). Moreover, the choice between inferences to be drawn from circumstantial evidence is peculiarly the province of the jury. State v. Lowenberg, 216 Iowa 222, 243 N.W. 538. As a corollary, a trial court may not find an element conclusively established against an accused without a judicial admission by him which we do not have here. State v. Shepard, 247 Iowa 258, 73 N.W.2d 69, overruled on other grounds, State v. Jensen, 189 N.W.2d 919 (Iowa).
The other factor is that no evidence of "accommodation" or "not for profit" is necessary to establish the so-called accommodation offense under § 204.410. That section is written in an unusual fashion negative rather than affirmative. If the State proves the elements of (1) possession and (2) intent to deliver, but "fails to prove" (3) the profit element, then by virtue of § 204.410 the defendant is guilty of the accommodation offense. Thus the accommodation offense consists simply of (1) knowing possession of a controlled substance (2) with intent to deliver.
We have placed the possession element aside. The record contains substantial proof of intent to deliver. The record also contains strong proof that the intent was to deliver "for a profit." Ordinarily the jury could accept the intent to...
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