State v. Moyer, No. 4-753/03-1767 (IA 12/22/2004)
| Decision Date | 22 December 2004 |
| Docket Number | No. 4-753/03-1767,4-753/03-1767 |
| Citation | 695 N.W.2d 334 |
| Parties | STATE OF IOWA, Plaintiff-Appellee, v. CHRISTOPHER KEITH MOYER, Defendant-Appellant. |
| Court | Iowa Supreme Court |
Appeal from the Iowa District Court for Fremont County, J. C. Irvin and James S. Heckerman, Judges.
Keith Moyer appeals from his convictions and sentences for conspiracy to manufacture methamphetamine with intent to deliver, possession of methamphetamine with intent to deliver, possession of anhydrous ammonia with intent to use as a precursor, possession of lithium with intent to use as a precursor, and possession of pseudophedrine with intent to use as a precursor. CONVICTIONS AFFIRMED; SENTENCES VACATED; AND REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, Vicki R. Danley, County Attorney, for appellee.
Heard by Huitink, P.J., and Mahan, Miller, Vaitheswaran, and Eisenhauer, JJ.
Keith Moyer appeals from his convictions and sentences for conspiracy to manufacture five grams or less of methamphetamine with intent to deliver in violation of Iowa Code section 124.401(c)(6) (2003) (), possession of five grams or less of methamphetamine with intent to deliver in violation of Iowa Code section 124.401(1)(c)(6) (), possession of anhydrous ammonia with intent to use as a precursor in violation of Iowa Code section 124.401(1)(d) (Count V), possession of lithium with intent to use as a precursor in violation of Iowa Code section 124.401(1)(d) (Count VI), and possession of pseudophedrine with intent to use as a precursor in violation of Iowa Code section 124.401(1)(d) (Count VII). We affirm Moyer's convictions, vacate the sentences, and remand for resentencing.
On June 24, 2003, the State charged Moyer by trial information with the manufacture of more than five grams of methamphetamine in violation of Iowa Code section 124.401(1)(b)(7) (Count I), prohibited acts in violation of section 124.407 (Count II), Count III, failure to affix a drug tax stamp in violation of section 453b.12 (Count IV), Count V, Count VI, Count VII, possession of ethyl ether as a methamphetamine precursor in violation of section 124.401(4) (Count VIII), possession of marijuana in violation of section 124.401(5) (Count IX), unlawful possession and transportation of anhydrous ammonia in violation of section 124.401(F) (Count X), and possession of drug paraphernalia in violation of section 124.414 (Count XI). The State amended Count I on August 24, 2003, to charge Moyer with conspiracy to manufacture more than five grams of methamphetamine in violation of section 124.401(1)(b)(7). These charges were based, in part on the evidence seized during execution of a search warrant at Moyer's residence and adjoining property. The search warrant was issued on the application of Fremont County Deputy Sheriff Eric Blevins. Blevins's application states:
On 6/14/03 at approx. 0200 hrs, I was on routine patrol in the 2800 block of 240th Ave when I observed a red 83 Ford pickup (Iowa license 331MJF) parked at a field entrance to property owned by Christopher K. Moyer. As I stopped my patrol vehicle, the white male sitting in the driver's seat exited the red Ford and approached another white male who was unlocking a cable covering the entrance. I immediately recognized this individual to be Christopher Moyer. The individual who exited the red Ford was identified as Ralph R. Bell II. Moyer advised that he was unlocking the gate to check his property due to individuals being on said property earlier. I detected a strong smell of anhydrous ammonia emitting from the red Ford. I walked toward the bed of the vehicle and observed that the smell was very strong. I removed a blue tarp covering a small propane tank, which was leaking the anhydrous. Moyer and Bell were both placed under arrest and a search of the red Ford revealed other precursors utilized in the manufacture of methamphetamine. Along with the precursors, three containers were located containing a powder and rock substance believed to be methamphetamine and a digital scale, hypodermic needles, and other paraphernalia. On or about 6/12/03, a confidential informant advised me that he was at 2811 240th Ave, Christopher Moyer residence, on 6/10/03 with another individual and he observed Moyer sell a large quality of methamphetamine to this individual.
The record indicates investigators seized a number of items associated with the manufacture of methamphetamine, including: two thousand-pound anhydrous tanks, methamphetamine powder on top of a mirror, a pill bottle containing a methamphetamine substance, paper towels containing a pink sludge of methamphetamine, fifty-six pseudophedrine pills in a bucket, a coffee grinder containing pseudophedrine residue, empty blister packs of pseudophedrine, a piece of a phone book with an address for Pseudo 60's (a business selling pseudophedrine), twenty-seven lithium batteries, two peeled lithium batteries, a paper bag containing lithium battery casings, empty lithium battery packages, and five punctured cans of starter fluid. Officers found a digital scale, marijuana, and a marijuana pipe in Moyer's home.
Prior to trial Moyer moved to suppress the evidence obtained as the result of this search. He claimed that the search warrant was issued without probable cause for the following reasons:
Probable cause for said warrant was based on hearsay information supplied to the issuing magistrate.
Probable cause is based on the illegal search of Mr. Bell's vehicle.
Considering all of the circumstances set forth in the search warrant affidavit attached hereto as Exhibit "2" there is insufficient information therein for the magistrate to determine the existence of probable cause.
Specifically said information included material hearsay from unnamed person(s) who have not demonstrated adequate veracity of any basis of knowledge from which to establish a fair probability that contraband was present as described in the warrant.
There is no evidence on the Application or Endorsement to support probable cause that any of the articles on the "Property to be Seized" pre-prepared attachment to the Application are on the premises.
There is no evidence stated in the Application or Endorsement to give probable cause to search any vehicle or outbuilding on the property . . . .
In denying Moyer's motion to suppress, the court found:
The Court having considered that application and the material contained therein finds that the magistrate was informed that there was a vehicle, clearly not Mr. Moyer's vehicle. That's shown. Apparently it is Mr. Bell's. He was the driver. But that Mr. Moyer was in the process of unlocking or somehow opening the gate to Mr. Moyer's property for the extensible purpose of the pickup entering that property, that pickup contained anhydrous ammonia and other precursors utilized in the manufacture of methamphetamine. That coupled with the fact that the confidential informant had indicated that three or four days prior to June 14th that he had observed a sale of a large quantity of what he believed to be methamphetamine by Mr. Moyer to another person at Mr. Moyer's residence, all those facts taken together certainly supply probable cause for the issuance of a search warrant concerning the Moyer property, not only the residence, but any other out buildings for evidence of the manufacture or sale of methamphetamine.
At trial Bell testified Moyer and he manufactured methamphetamine together on approximately twenty or thirty occasions. Bell also testified that they manufactured methamphetamine on June 13, 2003, and divided the finished product. He further testified that they had been "cooking day and night" for three days prior to that. Bell additionally testified that when he returned for more anhydrous ammonia later on June 13, Moyer asked him for a ride to retrieve Moyer's vehicle from a pond on Moyer's farm, and that they planned to manufacture more methamphetamine the next morning.
The State's evidence also included testimony from Bell and Officer Bob Davis that, at the time of his arrest, Moyer asked Bell to tell the arresting officers the drugs and precursors belonged to Bell, and Moyer would take care of him with "money or whatever."
Albert Hale, an inmate at the county jail with Moyer, testified that Moyer stated he had been "caught cooking dope." Moyer further stated that he didn't think the State could "make the charges stick" because he was not caught with anything, and because the anhydrous could be explained by his farming operation.
On September 4, 2003, the jury found Moyer guilty of the lesser included offense of Count I (conspiracy to manufacture less than five grams of methamphetamine), the lesser included offense of Count III (possession of five or less grams of methamphetamine with intent to deliver), and Counts V, VI, VII, and VIII. On October 13, 2003, the court granted Moyer's motion in arrest of judgment on Count VIII, and sentenced him to a ten-year term of imprisonment on Count I, a ten-year term of imprisonment for Count III to be served consecutively to the sentence for Count I, and three five-year terms of imprisonment for Counts V, VI, and VII to be served concurrently with each other and consecutively to the sentences imposed for Counts I and III. Moyer appeals his convictions and sentences.
On appeal, Moyer raises the following issues for review:
I. WHETHER THE DISTRICT COURT'S [sic] ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS?
II. WHETHER THE RECORD CONTAINS INSUFFICIENT EVIDENCE TO SUPPORT DEFENDANT'S CONVICTION?
III. WHETHER TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO REQUEST THAT THE JURY BE ADMONISHED TO DISREGARD IMPROPER EVIDENCE?
IV. WHETHER THE TRIAL COURT ERRED BY...
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