State v. Truesdell, 02-1529.

Citation679 N.W.2d 611
Decision Date12 May 2004
Docket NumberNo. 02-1529.,02-1529.
PartiesSTATE of Iowa, Appellee, v. Kirby Joe TRUESDELL, Appellant.
CourtUnited States State Supreme Court of Iowa

Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Harold L. Denton, County Attorney, and Jerry Vander Sanden, Assistant County Attorney, for appellee.

CADY, Justice.

It is commonly known that some consumer products—such as a variety of over-the-counter cold relief medications—contain chemicals used to manufacture methamphetamine (meth). As a result, our legislature has made it a crime for a person to possess a product containing such chemicals with the intent to use the product to manufacture a controlled substance. This appeal requires us to consider whether a violation of the statute occurs when, without other evidence, a person possesses products containing a controlled substance precursor in a quantity incompatible with normal personal consumption but compatible with the quantity needed to manufacture a standard batch of meth. We conclude substantial evidence did not support the conviction in this case. We vacate the decision of the court of appeals and affirm the district court judgment and sentence in part, reverse in part, and remand for dismissal of the charge of possession of a precursor with intent to use it to manufacture a controlled substance.

I. Background Facts and Proceedings

Kirby Joe Truesdell (Truesdell) was arrested on April 17, 2002, after he left a Hy-Vee store in Cedar Rapids with a grocery cart filled with seventy boxes of cold relief medication, together with a few food items, without stopping at the checkout counter to pay for the products. Truesdell entered the store during the early morning hours and placed virtually the entire stock of cold relief medication located on the store shelves into a shopping cart. His bizarre and brazen conduct caused a store employee to call the police, but Truesdell left the store through a back emergency door before they arrived. An assistant store manager observed Truesdell transfer the boxes of cold relief medication from the shopping cart into a Jeep Cherokee parked in the store parking lot. Truesdell then entered the driver's door of the vehicle and the vehicle sped from the parking lot, nearly striking the employees who were approaching the vehicle.

Truesdell was observed a short time later, together with the Jeep Cherokee, at a trailer park located approximately two miles from the Hy-Vee store. The police transported two store employees to the trailer park, where they identified Truesdell as the person who committed the theft. The identification was performed within thirty minutes to an hour from the time Truesdell left the parking lot of the store.

The police arrested Truesdell, and transported him to the county jail. While at the county jail, the police suspected he was intoxicated. His breath smelled of a strong odor of alcohol, his eyes were bloodshot, his pupils were dilated, and his speech was slurred. He was also loud and obstreperous at times. Truesdell declined to perform any sobriety test, and refused to give a breath sample for testing.

The police found the cold relief medication and groceries taken from the Hy-Vee store in the back seat of the Jeep Cherokee. The total value of the merchandise was $372.88. Each box of cold relief medication contained between twelve to forty-eight tablets. The police also discovered that Truesdell had been barred from operating a motor vehicle.

The cold relief medication taken by Truesdell contained pseudoephedrine, a chemical listed as a controlled substance precursor in Iowa Code section 124.401(4)(b) (2001). The presence of this chemical in the cold relief medication subjected the product to the prohibited possession provisions of section 124.401(4).1 Pseudoephedrine is a precursor, or an essential building block, used to manufacture meth, a highly addictive stimulant.

The most common recipe for manufacturing meth calls for 1000 to 1200 60-milligram tablets of cold medication containing pseudoephedrine. This amount of pseudoephedrine generally produces between one to two ounces of meth. Additional tablets would result in more meth. The quantity of tablets taken by Truesdell from the Hy-Vee store was the equivalent of around 1500 60-milligram tablets.

These facts and others were introduced during the course of a jury trial in this case. Additionally, Truesdell testified that he did not know how meth was manufactured, and further told the jury that he planned to sell the cold relief medication to a friend. Truesdell also testified he consumed beer earlier in the evening, but was sober at the time he was placed in police custody. He admitted to taking the cold relief medication, but testified his cousin actually drove the vehicle from the Hy-Vee parking lot. Other than the possession of the medication, the State introduced no other evidence pointing to Truesdell's involvement in the manufacturing of meth.

The jury found Truesdell guilty of OWI, third offense, possession of precursors with intent to manufacture meth, driving while barred, and theft in the fourth degree. The district court entered judgments and imposed sentences for all four convictions. Truesdell appeals from the judgment and sentence entered for the OWI and the possession of precursors.

On appeal, Truesdell asseverates there was insufficient evidence to support the convictions. He points to the absence of any evidence that he was intoxicated during the time he was observed operating a motor vehicle. He also claims there was no evidence to show he intended to use the cold relief medication to manufacture meth. In response to the State's argument that these alleged errors were not properly preserved at trial through a specific motion for judgment of acquittal, Truesdell asserts his trial counsel was ineffective for failing to specifically identify the insufficiency of the evidence to support the convictions in making the motion.

We transferred the case to the court of appeals. It found Truesdell waived his claim of insufficient evidence by raising it for the first time on appeal. Yet, it decided to preserve the claim of ineffective assistance of counsel for postconviction relief. We granted further review.

II. Scope of Review.

"We review claims of ineffective assistance of counsel de novo." State v. Hischke, 639 N.W.2d 6, 8 (Iowa 2002). Our review of claims of insufficient evidence to support a conviction is for correction of errors at law. State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997). Substantial evidence exists to support a verdict when the record reveals evidence that a rational trier of fact could find the defendant guilty beyond a reasonable doubt. Id. In making this determination, "[w]e view the evidence in the light most favorable to the verdict," including all reasonable inferences that may be deduced from the record. State v. Gay, 526 N.W.2d 294, 295 (Iowa 1995).

III. Preservation of Error.

To preserve error on a claim of insufficient evidence for appellate review in a criminal case, the defendant must make a motion for judgment of acquittal at trial that identifies the specific grounds raised on appeal. See State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996)

. In this case, trial counsel for Truesdell moved for a judgment of acquittal at the close of the State's case and again at the close of all the evidence. However, he failed to specifically raise the sufficiency of the evidence claim now raised on appeal. Thus, error was not preserved.

The failure of trial counsel to preserve error at trial can support an ineffective assistance of counsel claim. Ordinarily, ineffective assistance of counsel claims are best resolved by postconviction proceedings to enable a complete record to be developed and afford trial counsel an opportunity to respond to the claim. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). Yet, in some instances, the appellate record can be adequate to address the claim on direct appeal. Id. at 246. When the record is adequate, the appellate court should decide the claim on direct appeal. See State v. Rubino, 602 N.W.2d 558, 563 (Iowa 1999)

. Preserving ineffective assistance of counsel claims that can be resolved on direct appeal wastes time and resources.

A claim of ineffective assistance of trial counsel based on the failure of counsel to raise a claim of insufficient evidence to support a conviction is a matter that normally can be decided on direct appeal. See State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003)

. Clearly, if the record in this case fails to reveal substantial evidence to support the convictions, counsel was ineffective for failing to properly raise the issue and prejudice resulted. On the other hand, if the record reveals substantial evidence, counsel's failure to raise the claim of error could not be prejudicial. Consequently, the claim of ineffective assistance of counsel in this case can and should be addressed on direct appeal.

IV. Sufficiency of Evidence for OWI.

The crime of operating while intoxicated has two elements. The state must first prove the defendant operated a motor vehicle. Iowa Code § 321J.2. Second, the state must prove the defendant was, at the time, "under the influence of an alcoholic beverage or other drug," or some combination, or had an excessive blood alcohol level. Id. Truesdell does not argue there was insufficient evidence to show he was under the influence or that he operated a motor vehicle. Instead, he asserts there was insufficient evidence to show he was under the influence while he operated a motor vehicle. He points out that the witnesses who observed him driving a vehicle and the police officers who later arrested him at the trailer park did not testify to any facts at trial concerning his state of intoxication. Consequently, he claims the evidence in the case...

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