No. 5-630 / 04-1157Court of Appeals of Iowa.
Filed September 28, 2005
Appeal from the Iowa District Court for Black Hawk County, James C. Bauch, Judge.
Aldreias Jerome Campbell appeals his conviction and sentence for possession of marijuana with intent to deliver, enhanced, and failure to possess a tax stamp. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Bridget Chambers, Assistant Attorney General, for appellee.
Considered by Huitink, P.J., and Vogel and Zimmer, JJ.
HUITINK, P.J.
Aldreias Jerome Campbell appeals his conviction and sentence for possession of marijuana with intent to deliver, enhanced, in violation of Iowa Code section 124.401(1)(d) and 124.411 (2003), and failure to possess a tax stamp in violation of Iowa Code section 453B.12.
I. Background Facts Proceedings
On January 30, 2003, a search warrant was executed at Campbell’s residence. Officers seized 119.9 grams of marijuana from Campbell’s bedroom and 1.3 grams of marijuana from Campbell’s truck. In another bedroom in Campbell’s home, Officers seized 1.7 grams of marijuana. The officers also found cocaine. On March 5, 2003, the State filed a four-count trial information charging Campbell with various drug offenses. Those at issue here include Count I, possession of marijuana with intent to deliver (enhanced based on a prior conviction) in violation of Iowa Code section 124.401(4) and 124.411 (2003), and Count II, failure to affix a drug tax stamp in violation of Iowa Code section 453B.12
(2003).
Campbell’s case went to trial in April 2004. Campbell moved for judgment of acquittal on the tax stamp count at the close of the State’s evidence and again at the close of all of the evidence. The court denied both motions. The jury returned guilty verdicts on all counts. On May 27, 2004, Campbell filed a motion in arrest of judgment, arguing the State failed to prove beyond a reasonable doubt that Campbell possessed 42.5 grams or more of marijuana because no evidence was offered pertaining to the weight of the marijuana without the stalks and stems.
On July 16, 2004, a hearing was held, and the court denied Campbell’s motion. Campbell was sentenced to an indeterminate term of fifteen years for the offense of possession with intent to deliver marijuana and to an indeterminate term of five years for the offense of failure to possess a tax stamp. Campbell filed a notice of appeal on July 20, 2005.
On appeal, Campbell argues:
“I. The evidence was insufficient to prove beyond a reasonable doubt failure to affix a tax stamp. The State failed to offer evidence of what the weight of the marijuana would be without the stalks and stems.”
“II. The Defendant was denied the effective assistance of counsel. Trial counsel breached a duty to challenge the sufficiency of the evidence for the offense possession of marijuana with the intent to deliver. Weight was an element of the offense as the State was required to establish whether the marijuana was more than one-ounce or one-half ounce or less. The State failed to offer evidence of what the weight of the marijuana would be without the stalks and stems, therefore, failed to establish any amount.”
II. Standard of Review
Challenges to the sufficiency of the evidence supporting a guilty verdict are reviewed for errors of law. State v. Webb, 648 N.W.2d 72, 75 (Iowa 2002) (citing State v. Heard, 636 N.W.2d 227, 229 (Iowa 2001)). If substantial evidence supports the verdict, we uphold it. Id. “We review the evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the evidence in the record.” Id.; State v. Torres, 495 N.W.2d 678, 681 (Iowa 1993) (citing State v. Robinson, 288 N.W.2d 337, 338 (Iowa 1980)). “Substantial evidence means such evidence as could convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt.”Torres, 495 N.W.2d at 684 (citing Robinson, 288 N.W.2d at 339).
We “cannot make a substantial evidence determination if [we] only consider the evidence supporting guilt,” because “a rational fact finder cannot render a verdict without taking into consideration all the record evidence.” Id. We must consider all the record evidence. Id.; Webb, 648 N.W.2d at 76 (citin Heard, 636 N.W.2d at 229).
“The State must prove every fact necessary to constitute the crime with which the defendant is charged.” Webb, 648 N.W.2d at 76 (citing State v. Gibbs, 239 N.W.2d 866, 867 (Iowa 1976)). “The evidence must raise a fair inference of guilt” creating more than “speculation, suspicion, or conjecture.” Id. (citin State v. Hamilton, 309 N.W.2d 471, 479 (Iowa 1981)).
III. Merits
Campbell maintains that the State failed to prove beyond a reasonable doubt that he possessed 42.5 grams or more of marijuana without including the weight of the stalks and stems. Under Iowa Code section 453B.3, a taxable substance cannot be distributed by a dealer unless the tax under chapter 453B has been paid as evidenced by a stamp. Selling a taxable substance without paying this tax is subject to the penalties under section 453B.12. A “dealer” is any person who possesses in this state “forty-two and one-half grams or more of processed marijuana or of a substance consisting of or containing marijuana.” Iowa Code § 453B.1(3)(b). “Marijuana,” in pertinent part, is defined as “all parts of the plants of the genus Cannabis; whether growing or not. . . . It does not include the mature stalks of the plant.” Id. § 124.101(17).
Campbell relies on State v. Martens, 569 N.W.2d 482 (Iowa 1997), for the proposition that the State is required to produce evidence that the weight of the marijuana without the stalks is 42.5 grams or more. In State v. Martens, the defendant argued that “the drug tax stamp law did not apply to the stalks and stems of the marijuana plant.” 569 N.W.2d at 488. In other words, the defendant argued that the stalks and stems should not be included in the weight of marijuana for the purposes of determining whether a person is a dealer requiring a tax stamp Id. The Iowa Supreme Court concluded that “[t]he proper construction of Iowa Code section 453B.1(3)(b) (1993) is that the gram weight computed under the statute cannot include the weight of marijuana stalks.” Id. Ultimately, the Iowa Supreme Court held in State v. Martens that “the State failed to prove that the certified weight, exclusive of the marijuana stalk, met the gram weight specified under Iowa Code section 453B.1(3)(b), to prove the commission of the offense.” Id.
State v. Martens is distinguishable because the court’s opinion did not include discussion of evidence concerning the amount of marijuana seized from the defendant in State v. Martens. Here, however, the record indicates that officers seized a total of 122.9 grams not including the weight of packaging. At trial, Melvin Irvin, a certified addiction counselor with extensive experience with marijuana, testified to the amount of marijuana in the large bag found in Campbell’s bedroom. He testified before the jury that the amount in the large bag was approximately four ounces and that after the seeds and stems were removed there would be approximately two ounces in the bag. The jury was instructed that one ounce equals 28.35 grams. Therefore, according to the testimony of Melvin Irvin, the marijuana in the large bag alone would equal 56.7 grams without the seeds and stems. Adding the 1.7 and 1.3 grams also seized, the total weight is 59.7 grams, which is higher than the 42.5 grams required by section 453B.1(3)(b). No other evidence was presented to the jury regarding the weight of the marijuana.
Viewing the evidence presented to the jury, we conclude a rational trier of fact could conclude that the bag contained enough marijuana in it to constitute a violation of chapter 453B.[1] As a result, there is sufficient evidence to support a verdict of guilty.
Campbell also asserts that his counsel was ineffective for failing to challenge the sufficiency of the evidence at trial for the offense of possession of marijuana with the intent to deliver. We review Campbell’s denial of effective assistance of counsel de novo. Taylor v. State, 352 N.W.2d 683, 684 (Iowa 1984). To show counsel was ineffective, “a defendant must prove by a preponderance of the evidence that (1) counsel failed to perform an essential duty, and (2) prejudice resulted therefore.”State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002) (quotin State v. Kinkead, 570 N.W.2d 97, 103 (Iowa 1997)).
Our resolution of Campbell’s sufficiency of the evidence claim is also dispositive of his ineffective assistance of counsel claim. As indicated earlier, there was sufficient evidence concerning the weight of the marijuana to support Campbell’s conviction on the relevant counts. Counsel accordingly had no duty to challenge the sufficiency of the evidence. We affirm on this issue.
AFFIRMED.