State v. Westeen

• Decision Date: 24 March 1999
• Docket Number: No. 97-2019,97-2019
• Citation: 591 N.W.2d 203
• Parties: STATE of Iowa, Appellee, v. Douglas Allen WESTEEN, Appellant.
• Court: Iowa Supreme Court

Page 203

591 N.W.2d 203

STATE of Iowa, Appellee, v. Douglas Allen WESTEEN, Appellant.

No. 97-2019.

Supreme Court of Iowa.

March 24, 1999.

Linda Del Gallo, State Appellate Defender, Patricia Reynolds, Assistant State Appellate Defender, and Lori Loftsgard, Student Intern, for appellant.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Thomas S. Mullin, County Attorney, and James J. Katcher, Assistant County Attorney, for appellee.

Considered by HARRIS, P.J., and LARSON, CARTER, NEUMAN, and TERNUS, JJ.

TERNUS, Justice.

This case presents our first opportunity to interpret Iowa's "crack-house" statute, Iowa Code section 124.402(1)(e) (1997). The primary issue presented is whether this statute requires a showing of some degree of continuity in order to establish that the defendant was "keeping" a dwelling for the purpose of possessing or selling controlled substances. We think it does and conclude that trial counsel rendered ineffective assistance in failing to raise this issue in the district court. Therefore, we reverse and remand.

I. Background Facts and Proceedings.

The defendant, Douglas Westeen, was arrested at the Bennett Motel in Sioux City, Iowa and charged with possession of methamphetamine with intent to deliver in violation of Iowa Code section 124.401(1)(c), and with keeping a dwelling for possessing controlled substances in violation of section 124.402(1)(e). Three other individuals were also arrested with Westeen--Greg Leesley, Charlene Elliott, and Mike Fritsen. Leesley and Elliott testified at Westeen's trial, as did several Sioux City police officers. Neither Westeen nor Fritsen testified.

The testimony of Leesley and Elliott was fairly consistent. They stated that in the early morning hours of June 30, 1997, they were riding in a car with Fritsen, looking for Fritsen's ex-wife. Fritsen asked Leesley, who was driving, to pull in at the Bennett Motel. When they parked, they noticed the door to room 25 was open. Westeen emerged from the room and began talking to Fritsen, whom he apparently knew. There was some conversation between Westeen and Fritsen about drugs, and then Westeen invited them into the room.

Westeen offered to "turn them on" even though the three visitors informed him that they had no money to pay for drugs. Westeen removed a scale from a dresser drawer from which he took a package that he handed to Fritsen. Fritsen gave the package, which contained methamphetamine, to Leesley and asked him to prepare it. As Leesley was preparing the contents of the package, Westeen said, "if [you] like it ... [you know ] how to get ahold of Mike [Fritsen] ... and Mike [knows] how to get ahold of [me]."

At this point, the police knocked on the door; they were investigating an anonymous report of suspicious activity. Westeen answered the door and initially refused to let the police in, stating it was not his room. After learning Westeen's identity, the authorities determined there was an outstanding warrant for his arrest. The police then arrested him and conducted a cursory search of the room. During this search, the officers observed dirty cellophane-type wrappers consistent with drug use, a scale, a paper bindle containing suspected methamphetamine, a pencil case holding syringes and a rock that appeared to be methamphetamine, pieces of tin foil consistent with drug use, and the lines of methamphetamine that Leesley had been preparing, along with the razor blade he was using. Subsequent laboratory testing confirmed the drugs found by the authorities were methamphetamine weighing 2.97 grams.

After Westeen's arrest, he consented to a search of his person. The police retrieved a key from his pocket that opened the motel room door. Westeen explained that he had given the person who rented the room, a man by the name of Don, a ride to a casino and had returned to the room by himself. The police found no money on Westeen or in the room.

The record shows that the room had been rented by Robert Raby from June 22 through June 29, 1997, a period that included the early morning hours of June 30. Raby testified that although he had rented the room, he only stayed there one or two nights and then allowed another man, Andrew Cooper, to use the room. Raby left the key in the room, but did not leave any personal belongings there. He did not know who was staying in the room on the night in question. He did acknowledge that he had a conversation with Westeen around the date in question about using the room, but Raby did not give Westeen the key, nor was he aware that Westeen actually used the room.

After lengthy deliberations and several questions to the court, the jury announced that it could not reach a verdict on count I, the charge of possession of methamphetamine with the intent to deliver. The jury did, however, find Westeen guilty of count II, the offense of keeping a dwelling for possessing controlled substances. The court declared a mistrial as to the possession charge and sentenced Westeen to a term of incarceration not to exceed two years on the keeping-a-dwelling charge. Westeen appeals his conviction claiming (1) there was insufficient evidence to support his conviction and (2) trial counsel was ineffective in failing to argue that the element of "keeping" required a showing of some degree of continuity.

II. Elements of Offense.

In order to better understand the defendant's arguments, we start with a review of the statute Westeen was convicted of violating. Iowa Code section 124.402(1)(e) provides that it is unlawful for any person to

[k]nowingly ... keep or permit the keeping or to maintain any premises, store, shop, warehouse, dwelling, temporary, or permanent building, vehicle, boat, aircraft, or other temporary or permanent structure or place, which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for keeping, possessing or selling them in violation of this chapter.

This statute was adopted in 1971 upon the recommendation of the legislature's Drug Abuse Study Committee. See 1971 Iowa Acts ch. 148, § 402; Final Report of the Drug Abuse Study Committee to the Sixty-Fourth General Assembly 39-40 (1971); Cassady v. Wheeler, 224 N.W.2d 649, 651-52 (Iowa 1974). Section 124.402(1)(e) closely mirrors section 402(a)(5) of the Uniform Controlled Substances Act of 1970. See Uniform Controlled Substances Act of 1970 § 402(a)(5), 9 U.L.A. 493 (1979).

In the case before us, we are concerned only with the alternative charged in the trial information and submitted to the jury. The information charged that Westeen "did knowingly keep a dwelling which was used for keeping, possessing or selling controlled substances." Thus, at trial the jury was instructed that the State was required to prove (1) that Westeen "knowingly kept a dwelling" (2) that "was used for keeping, possessing or selling controlled substances." Our subsequent discussion will focus on these elements of the crime.

III. Sufficiency of the Evidence.

A. Scope of review. We will uphold the trial court's ruling on a motion for judgment of acquittal "if there is substantial evidence in the record to support the defendant's conviction." State v. McPhillips, 580 N.W.2d 748, 752 (Iowa 1998). In evaluating whether substantial evidence exists, we view the evidence in a light most favorable to the State. See State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996). Our review is not all-encompassing; it is limited to assigned error. See McPhillips, 580 N.W.2d at 753. Thus, our analysis begins with an identification of the specific deficiencies in the evidence claimed by Westeen at trial and on appeal.

B. Error preservation. In his motion for directed verdict, Westeen's counsel challenged the sufficiency of the evidence to support the keeping-a-dwelling charge on two bases: (1) there was insufficient evidence of the first element of the offense because there was no proof that Westeen had control over or was in possession of the premises; and (2) there was insufficient evidence of the second element of the crime because there was no proof that Westeen possessed methamphetamine for the purpose of using or delivering the drug in the motel room. Westeen's challenge to the sufficiency of the evidence on the first element has changed, however, on appeal.

On appeal, Westeen argues that the evidence was insufficient to establish the first element of the crime because there was no showing of continuity or that a substantial purpose for keeping the room was for the possession or sale of drugs. This issue was not raised in the trial court, and therefore was not preserved for review. See Crone, 545 N.W.2d at 270 (holding only grounds mentioned in motion for judgment of acquittal are preserved for appellate review). Anticipating an error-preservation problem, Westeen also argues that his trial counsel was ineffective for failing to raise this issue in the district court proceedings. Therefore, we will consider Westeen's challenge to the sufficiency of the evidence on the first element in the context of Westeen's ineffective-assistance-of-counsel claim.

As for the second element of this crime, Westeen continues to challenge the sufficiency of the evidence on this element on the same grounds urged in the trial court. Because error was preserved on this issue, we now examine whether the evidence was sufficient to prove that the premises were "used for keeping, possessing or selling" controlled substances. Iowa Code § 124.402(1)(e).

C. Sufficiency of the evidence on the element of "used for keeping, possessing, or selling" controlled substances. Westeen argues the evidence was insufficient on this element because only a 2.97-gram chunk of methamphetamine was found in the room and there was no evidence directly linking Westeen with this particular quantity of drug. As the State accurately points out, however, there was evidence...