State v. Simpson, 93-996
| Decision Date | 29 March 1995 |
| Docket Number | No. 93-996,93-996 |
| Citation | 528 N.W.2d 627 |
| Parties | STATE of Iowa, Appellee, v. David Lee SIMPSON, Appellant. |
| Court | Iowa Supreme Court |
Linda Del Gallo, State Appellate Defender, and Shari Barron, Asst. State Appellate Defender, for appellant.
Bonnie J. Campbell, Atty. Gen., Martha E. Boesen, Asst. Atty. Gen., and Michael W. Mahaffey, County Atty., for appellee.
Considered en banc.
This case involves convictions for drug related offenses stemming from the discovery of marijuana on the premises of a house that the defendant had occupied with his brother. The defendant's appeal was transferred to the court of appeals which affirmed the convictions. We granted the defendant's application for further review. Having reviewed the record, we affirm the court of appeals' decision and the district court's judgments.
The defendant, David Lee Simpson and his brother, Roger Lee Simpson, were both incarcerated in June 1992. Prior to their incarceration they lived together in a house which had belonged to their parents. Their father died in January 1992; and their mother died in July 1992. The record is unclear whether their mother also lived in the house during 1992 before her death. David was released from jail on August 20 so that he could put his personal affairs in order. He returned three days later, August 23, and has been incarcerated since that date.
David requested utility service at the house be put in his name in February 1992. He made a cash deposit with the utilities at that time. The deposit was later applied on the account and a partial refund made to him on August 21, 1992. A utilities' employee then shut off the water for the house at the curb. In late September, David wrote to the utilities and requested it make sure the water to the house was turned off so that the pipes would not freeze because the house would be unoccupied during the winter. On October 1 a utilities' employee went to the house to check that the water was turned off and to remove the water meter from the basement. Both doors to the house were locked and he was unable to remove the water meter. The utilities notified David that the water was disconnected and that he would need to have someone go inside and drain all pipes and remove the water meter.
While at the house the utilities' employee observed several plants which he suspected were marijuana growing along the foundation in the back of the house. He alerted the police. Montezuma police officers Christopher Wray and Tom Sheets went to the house and looked at the plants. Because they also believed the plants were marijuana, they contacted multi-county drug task force officer Fred Oster and reported their observations. Officer Oster spoke with a neighbor and observed the plants through a window in the neighbor's house. He also saw the plants from a nearby alley. Officer Oster identified the plants as marijuana. The largest of the plants were approximately five feet tall. He concluded the marijuana plants had been growing for more than three months.
Officer Oster applied for a search warrant to search the house. The warrant affidavit included a statement that officers Sheets and Wray had advised Oster that "they had received information in the past about both Simpson brothers using/dealing marijuana/and that they possibly started the seedlings of the plants in the basement." The warrant was granted and executed on October 5.
Upon search of the house, officers found and seized a total of sixteen plastic bags containing "manicured" marijuana. Marijuana that has been processed by removing most of the seed and stems leaving just the bud or leaf is manicured marijuana ready to be used. No drug tax stamps were affixed to any of the marijuana.
Of the sixteen bags of marijuana seized by the officers, thirteen were found concealed in a cardboard box in the east bedroom. The marijuana was covered with several books with David's name on them and the box was covered by a large pile of clothing. The thirteen bags weighed a total of 741.2 grams, the equivalent to over one and one-half pounds. Another bag containing marijuana was found in the same bedroom. Other items found in the east bedroom included two pill bottles containing marijuana cigarette butts and a bank money bag with several marijuana pipes in it.
A marijuana pipe and two bags of marijuana were also found in the living room and were seized, as were the marijuana plants that had been growing along the foundation of the house. The marijuana baggies found in the living room were in a box that was covered with magazines, books, a letter addressed to David, and other papers with his name on them.
On March 17, 1993 David was charged by trial information with drug related offenses on the basis of the marijuana seized at the house. David moved to suppress the evidence obtained through the execution of the search warrant, claiming the search violated his Fourth Amendment rights. The district court denied his motion.
At trial David moved for a judgment of acquittal after the State rested. The court denied the motion and David rested without presenting any evidence. The jury returned guilty verdicts upon all charges and David was convicted of possession of marijuana with intent to manufacture, possession of marijuana with intent to deliver, and failure to affix a drug tax stamp, in violation of Iowa Code sections 204.401(1)(d) 1 and 421A.12 (1991)2. On appeal David challenges the court's instructions to the jury on constructive possession, the sufficiency of the evidence to convict him, and the court's denial of his motion to suppress.
Our standard of review on the jury instructions and sufficiency of evidence issues is for correction of errors at law. Iowa R.App.P. 4. Because a constitutional issue is raised, we review the denial of the motion to suppress de novo. State v. Niehaus, 452 N.W.2d 184, 187 (Iowa 1990).
David challenges the district court's instructions on constructive possession and the court's refusal to give an instruction proposed by him. The instructions given to the jury included the marshaling instruction as to each of the charges. In the marshaling instruction the court required the State to prove (1) the defendant "knowingly possessed" marijuana; and (2) that the defendant knew the substance he possessed was marijuana. The jury was instructed that "[f]or the defendant to know something means he had a conscious awareness that the substance in his possession was marijuana." See 1 Iowa Criminal Jury Instructions 200.3 (1988).
The court gave two instructions on possession. First, instruction No. 19 provided:
The word "possession" includes actual as well as constructive possession, and also sole as well as joint possession.
A person who has direct physical control of something on or about his person is in actual possession of it.
A person who is not in actual possession, but who has knowledge of the presence of something and has the authority or right to maintain control of it either alone or together with someone else, is in constructive possession of it.
If one person alone has possession of something, possession is sole. If two or more persons share possession, possession is joint.
See 1 Iowa Criminal Jury Instructions 200.47 (1989). The second instruction on possession, No. 20, provided:
Actual possession occurs when the substance is found on the person of the defendant, or in a place over which he has the exclusive use and control.
Constructive possession occurs when the defendant maintains control or has a right to control the place where the controlled substance was found. Constructive possession may be inferred when the substance is found in a place which is accessible to the defendant and is subject to his dominion and control, or the joint dominion and control of the defendant and another.
David objected to both instruction 19 and 20 because they failed to tell the jury that constructive possession is not established from a mere showing that substances were found on the premises over which the accused shared dominion and control. To satisfy the deficiency in the instruction David requested an instruction that provided:
The State's burden of proof regarding constructive possession is to show the defendant knew of the presence of marijuana and had the ability to maintain control over it.
Where the defendant has not been in exclusive possession of the premises, knowledge of the presence of the substances on the premises and the ability to maintain control over them by the defendant will not be inferred but must be established by proof.
On appeal David argues the instructions given on constructive possession were incorrect because they permitted the jury to infer authority or ability to control the marijuana upon proof of joint dominion and control of the place in which the marijuana was found. He urges "constructive possession may be inferred only where the premises is in exclusive possession of the defendant or where the defendant has exclusive or joint control of the area in which they are found."
We find instruction No. 19 to be a correct statement of Iowa law. The definition of possession includes both actual and constructive possession; sole or joint possession. Although David argues the State was not required to establish he had the ability to control the marijuana under the instruction given, we find instruction No. 19 clearly requires both knowledge of the presence of the marijuana and the authority or right to control it. The authority or right to control may be shared. Nor do we find instruction 20 to be an incorrect statement of the law. We previously found no error in the submission of this prior uniform instruction. State v. Rudd, 454 N.W.2d 570, 572 (Iowa 1990).
It appears the primary challenge to the court's instruction on constructive possession is...
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