State v. Raywalt, Cr. N
| Decision Date | 10 February 1989 |
| Docket Number | Cr. N |
| Citation | 436 N.W.2d 234 |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Daniel RAYWALT, Defendant and Appellant. o. 880147. |
| Court | North Dakota Supreme Court |
Brian D. Grosinger (argued), Asst. States Atty., Mandan, for plaintiff and appellee.
Dyer & Summers, Bismarck, for defendant and appellant; argued by Edwin W.F. Dyer III.
Daniel Raywalt appeals from a judgment of conviction entered upon a jury verdict finding him guilty of possession of drug paraphernalia. We affirm.
On November 25, 1987, law enforcement officers executed a search warrant at an apartment in Mandan. Raywalt, who was then on probation on another drug conviction, was present in the apartment, along with nearly thirty other persons.
Believing that Raywalt would be found in the apartment, the officers were accompanied by Tracy Stein, a probation officer from the North Dakota Parole and Probation Department. Stein searched Raywalt pursuant to a search clause incorporated in Raywalt's prior criminal judgment. Raywalt's jacket pocket contained a three-page "recipe" for manufacturing methamphetamine and a list of chemicals necessary to manufacture methamphetamine. The search of the apartment resulted in the seizure of other drug-related items, including spoons, syringes, "snow seals" (paper packets used for packaging powdered drugs), and a frisbee containing a piece of glass and a razor blade. These other items were not in Raywalt's possession.
Raywalt was subsequently arrested for possession of drug paraphernalia. After he had been given Miranda warnings, Raywalt admitted that he and two other persons had intended to set up a clandestine drug lab to manufacture methamphetamine.
The case was tried to a jury, which returned its verdict finding Raywalt guilty. Raywalt has appealed from the judgment of conviction entered upon the jury verdict, raising the following issues:
I. Was the evidence sufficient to support the jury's finding that Raywalt possessed drug paraphernalia?
II. Did the trial court err in admitting into evidence Raywalt's prior conviction, Raywalt's statements to police, and testimony regarding other drug-related items found in the search of the apartment?
Raywalt asserts that the evidence is insufficient to support the jury's finding that he possessed drug paraphernalia because there was no evidence to show that he intended to use the drug recipe to manufacture a controlled substance.
To place Raywalt's argument into proper context, it is necessary to outline our drug paraphernalia law. Section 12.1-31.1-03, N.D.C.C., makes it unlawful to possess drug paraphernalia with intent to use it in violation of the Controlled Substances Act, Chapter 19-03.1, N.D.C.C.:
Section 12.1-31.1-01 defines "drug paraphernalia":
"In this chapter, unless the context or subject matter otherwise requires, 'drug paraphernalia' means all equipment, products, and materials of any kind which are used, intended for use, or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of chapter 19-03.1."
That section also includes a non-exclusive list of examples of drug paraphernalia. Section 12.1-31.1-02, N.D.C.C., provides a list of guidelines to assist in determining whether an object is drug paraphernalia. These relevant factors include statements by the owner or person in control of the object concerning its use, prior drug convictions of the owner or person in control, expert testimony concerning its use, and other logically relevant factors.
These statutes, enacted in 1981, see 1981 N.D.Sess. Laws Ch. 160, were derived from the Model Drug Paraphernalia Act drafted by the Drug Enforcement Administration of the United States Department of Justice. The Act, rather than limiting paraphernalia to specified items, makes the determination whether an item is paraphernalia a question of fact based upon the circumstances of each case. Any object is paraphernalia if it is used, intended for use, or designed for use in connection with a controlled substance. The Comments to the Model Act make it clear that a showing of intent to use the object illegally is required before the object may be found to be paraphernalia:
Comments to Model Drug Paraphernalia Act ().
Thus, the Act in effect makes the determination whether an object is paraphernalia a question for the trier of fact. In this respect, we agree with the reasoning of the Supreme Court of Idaho in State v. Newman, 108 Idaho 5, 696 P.2d 856, 865 (1985):
It is within the context of this statutory scheme that Raywalt asserts a lack of evidence to support the jury's finding that he possessed the drug recipe with the intent to manufacture a controlled substance.
When a defendant challenges the sufficiency of the evidence he must demonstrate that the evidence, when viewed in the light most favorable to the verdict, reveals no reasonable inference of guilt. State v. Jacobson, 419 N.W.2d 899, 901 (N.D.1988). When reviewing a verdict based upon circumstantial evidence, the role of an appellate court is to merely review the record to determine if there is competent evidence to allow the jury to draw an inference reasonably tending to prove guilt and fairly warranting a conviction. State v. Jacobson, supra. In so doing, we do not substitute our judgment for that of the jury. State v. Jacobson, supra.
We find ample evidence in the record to support the jury's conclusion that Raywalt intended to use the drug recipe to manufacture a controlled substance. While the State will in nearly all cases be forced to prove intent by circumstantial evidence, the circumstantial evidence was particularly strong in this case. The drug recipe was found in Raywalt's jacket pocket in an apartment where other items of paraphernalia which could be used with methamphetamine were found. Raywalt had a recent conviction for delivery of methamphetamine, the same controlled substance which the recipe would produce. An expert witness testified that there could be no other use for the recipe other than to manufacture methamphetamine. Most importantly, the arresting officer testified that Raywalt admitted that he and two other persons had intended to set up a clandestine drug lab to manufacture methamphetamine. Each of these factors was relevant and supports the jury's determination that Raywalt intended to use the drug recipe to manufacture a controlled substance.
We conclude that there is sufficient evidence to support the conviction.
Raywalt asserts that the trial court erred in admitting into evidence his prior conviction, his statements to police, and testimony regarding other items found in the apartment.
The trial court admitted into evidence a certified copy of Raywalt's prior conviction of delivery of a controlled substance. Admission of prior convictions is governed generally by Rules 403 and 404, N.D.R.Evid. Rule 404(b) provides that evidence of other crimes is admissible to prove "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."...
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