STATE v. FACUNDO, 705 N.W.2d 507 (Iowa App. 2005)

No. 04-1580Court of Appeals of Iowa.
Filed September 14, 2005

Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.

Defendant appeals from his convictions for two counts possession of a controlled substance with intent to deliver and two counts of failure to affix a tax stamp. AFFIRMED IN PART ANDREVERSED IN PART.

Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Cristen Douglass, Assistant Attorney General, and John P. Sarcone, County Attorney.

Heard by Sackett, C.J., and Mahan and Miller, JJ.

SACKETT, C.J.

Defendant, John Facundo, appeals from a conviction for two counts of possession of a controlled substance with intent to deliver and two counts of failure to affix a tax stamp after a jury trial. The convictions came after drugs were found in the trunk of a Chevrolet Caprice Classic titled in defendant’s name and in the basement of a duplex at 3327 First Street in Des Moines. Defendant’s sole contention is that the State failed to prove beyond a reasonable doubt that he constructively possessed controlled substances. We affirm in part, and reverse in part.

I. BACKGROUND FACTS AND PROCEEDINGS.

On April 15, 2004 Des Moines Police Officer Robert Clark, while in an unmarked car and in plain clothes, was doing surveillance work outside of a duplex home with the addresses of 3325 First Street and 3327 First Street. Officer Clark saw a Chevrolet Caprice Classic and a Chevrolet Impala parked in front of the duplex. The defendant was seen moving back and forth between the two cars, getting in and out of each car, reaching into the backseat of each car, and accessing the trunk of the Caprice.

Officer Clark testified that defendant seemed to be looking at where Clark was parked. Officer Clark stated that it is common for persons involved in narcotics trafficking to be constantly looking around for police officers, uniformed and plain-clothed. Thus, Officer Clark moved his vehicle around a corner where he could not be seen by defendant. After several more minutes defendant drove away in the Impala and Demetrius Armstead drove away in the Caprice. Officer Clark followed the two cars and called for backup, in order to stop the cars, after he witnessed both cars drive through a red light. Police Sergeant McDermott stopped the Impala driven by defendant. Officer Clark stopped the Caprice.

The Caprice, which was titled in defendant’s name, was searched. In the trunk Officer Clark found two size eleven, white Reebok basketball shoes. Inside the shoes were two baggies of marijuana, weighing approximately one-quarter pound. The Caprice car title showed defendant was the owner and his address was listed as “3325 1st Street.” Defendant had $119 and a cell phone but no contraband on his person. Defendant was wearing a pair of black Reebok basketball shoes, size ten and one-half, similar to the ones found in the Caprice.

The duplex located at 3327 First Street, leased to Kelly Ford,[1] was searched after police obtained a search warrant. The basement, where the State contends defendant lived, was one large unfinished carpeted room, containing, among other things, a mattress and box spring, as well as a hanging clothes rack. In the basement the following controlled substances and paraphernalia were recovered: (1) in a large Reebok brand shoe box over 110 grams of marijuana were found along with a scale and box of plastic baggies; (2) inside a pair of K-Swiss brand basketball shoes two plastic baggies of marijuana were found; (3) inside a Tupperware container approximately nine grams of marijuana were found; (4) in another Tupperware container approximately eighty-one grams of marijuana were found; (5) inside a pill bottle, approximately nine grams of marijuana were found; (6) wrapped in a towel, a plastic baggie of psilocybin mushrooms were found; (7) inside a playpen with stuffed toys, two baggies of marijuana were found with a total weight of approximately 770 grams; and (8) four plastic packaging shells that are suitable of containing compressed bricks of marijuana were found.

Also, found on the upstairs kitchen counter at the 3327 First Street unit was a Western Union money transfer receipt, which showed that on April 9, 2004 John Facundo wired $3,200 to Michael Collier in New York. The receipt indicated defendant’s home address was “3327 Ovid.”

Defendant was charged in a five-count trial information with (1) conspiracy to deliver a controlled substance, in violation of Iowa Code section 124.401(1)(d) (2003); (2) possession of marijuana with intent to deliver, in violation section 124.401(1)(d); (3) failure to affix a tax stamp to the marijuana, in violation of sections 453B.3 and 453B.12; (4) possession of psilocybin mushrooms with intent to deliver, in violation of section 124.410(1)(c)(8); and (5) failure to affix a tax stamp to the mushrooms, in violation of sections 453B.3 and 453B.12. At the close of the State’s case, the district court entered a judgment of acquittal on the first count, conspiracy to deliver a controlled substance. The jury convicted defendant of the four remaining charges.

On appeal defendant argues the State offered insufficient evidence to demonstrate that he constructively possessed the controlled substances.

II. SCOPE OF REVIEW.

Sufficiency-of-the-evidence claims are reviewed for correction of errors of law. State v. Henderson, 696 N.W.2d 5, 7 (Iowa 2005). We uphold the verdict if there is substantial evidence to support it. Id. “Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt.” State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005). We consider all evidence, both that which detracts from the verdict as well as that which supports the verdict. Id.
III. ANALYSIS.

The crimes defendant was convicted of include the element of possession of a controlled substance. Iowa Code section 124.401(1) provides in relevant part that “it is unlawful for any person to . . . possess with the intent to . . . deliver, a controlled substance.” (Emphasis supplied). Iowa Code section 453B.3 provides in relevant part that “[a] dealer shall no possess . . . a taxable substance unless the tax imposed under this chapter has been paid as evidenced by a stamp. . . .” (Emphasis supplied). The only issue presented on appeal is whether defendant possessed the controlled substances.

To prove unlawful possession of a controlled substance, the State has the burden of proving that defendant

(1) exercised dominion and control over the contraband, (2) had knowledge of its presence, and (3) had knowledge that the material was a controlled substance. Proof of opportunity of access to the place where contraband is found will not, without more, support a finding of unlawful possession.

State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003). Because the contraband was not found on defendant’s person (in his actual possession), the State must prove defendant constructively possessed the contraband. Henderson, 696 N.W.2d at 9.

“The existence of constructive possession turns on the peculiar facts of each case.” State v. Webb, 648 N.W.2d 72, 79 (Iowa 2002). Nevertheless, a number of inferences may be used to prove constructive possession. See id. at 76-79. One such inference is that if the place where the contraband is found is in the exclusive possession of the accused, knowledge of the contraband’s presence coupled with the ability to maintain control over the contraband may be inferred. Here, this inference is of no assistance to the State. Id. Defendant’s possession of the Caprice, where drugs were found, was clearly not exclusive. Defendant was not in the Caprice at the time it was stopped by police. Additionally, the duplex unit where drugs were found was not in defendant’s exclusive possession, as 3327 First Street was the residence of Kelly Ford.

Marijuana and Psilocybin Mushrooms in Basement.

We first address whether there was substantial evidence to prove beyond a reasonable doubt defendant had constructive possession of themarijuana and psilocybin mushrooms found in the basement of the duplex. Where exclusive possession cannot be demonstrated, a number of other factors may be applied to assist in determining whether the accused had constructive possession of the contraband. These factors include:

(1) incriminating statements made by the accused, (2) incriminating actions of the accused upon the police’s discovery of a controlled substance among or near the accused’s personal belongings, (3) the accused’s fingerprints on the packages containing the controlled substance, and (4) any other circumstances linking the accused to the controlled substance.

Carter, 696 N.W.2d at 39 (citing Webb, 648 N.W.2d at 79).

No incriminating statements were made by defendant. Defendant was not present when police discovered the drugs in the basement. Defendant’s fingerprints were not found on any of the packages containing controlled substances.

The State urges that the following other circumstances sufficiently link defendant to the controlled substances: (1) defendant’s car title showed defendant’s address was 3325 First Street, which the State argues indicates defendant lived in the duplex, if not the specific unit, where drugs were found; (2) the Western Union receipt found on the first floor of the 3327 First Street unit signed by defendant and showing his residence was “3327 Ovid;”[2] (3) men’s clothes were in the basement; (4) a number of pairs of basketball shoes, including Reeboks, were found in the basement; and (5) drugs were found inside a Reebok shoebox.

There was not substantial evidence to support a finding beyond a reasonable doubt that defendant had constructive possession of the drugs seized from the basement of the duplex at 3327 First Street. It is undisputed Kelly Ford was the party who was leasing the duplex. The defendant’s car title showed defendant’s address to be the unit next door. The Western Union receipt listing defendant’s address as “3327 Ovid” and Reebok shoes and a Reebok shoebox found in the basement of the unit are not enough to support a finding that defendant was guilty beyond a reasonable doubt of possessing the contraband seized in the basement. Additionally, the only identifying evidence found in the basement was a piece of mail addressed to Demetrius Armstead; not to defendant. Thus, we reverse defendant’s conviction with regards to the drugs seized from the basement.

Marijuana in Trunk.

Next, we address the question of whether there was substantial evidence to prove beyond a reasonable doubt that the contraband seized from the trunk of the Caprice was constructively possessed by defendant. In addition to the previously listed factors we consider in addressing constructive possession, when contraband is found in a motor vehicle we may also consider:

(1) was the contraband in plain view, (2) was it with the accused’s personal effects, (3) was it found on the same side of the car seat as the accused or immediately next to him, (4) was the accused the owner of the vehicle, and (5) was there suspicious activity by the accused.

Carter, 696 N.W.2d at 39 (citing State v. Kemp, 688 N.W.2d 785, 789 (Iowa 2004)).

The State contends there were sufficient circumstances linking defendant to the marijuana found in the trunk, first noting that defendant was the owner of the Caprice. The State points out that Officer Clark witnessed defendant open the trunk of the Caprice and then close and lock it, and argues this is persuasive evidence that defendant had knowledge the marijuana was in the trunk. The State also relies on Officer Clark’s lengthy observation of the car and the fact that he did not see anyone other than defendant access the trunk. Finally, the State argues that because the marijuana in the trunk was found stuffed inside Reebok shoes similar to the shoes defendant was wearing at the time of his arrest, the jury could infer the shoes belonged to defendant.

Defendant argues the evidence was not substantial. He contends that though Officer Clark watched him access the trunk, Officer Clark did not see him place anything in the trunk or take anything out of the trunk. Furthermore, he notes the marijuana was not in plain view inside the trunk; rather it was stuffed inside shoes. Therefore, defendant argues he could not have known the marijuana was there simply by opening and looking inside the trunk. Defendant also argues Reeboks are common shoes and the State presented no evidence that the shoes were unique to defendant. Finally, defendant notes that no drugs were found on his person and he only had $119 in cash.

The State’s case is not particularly strong. Yet, we find there was substantial evidence to prove beyond a reasonable doubt defendant had constructive possession of the marijuana found in the Caprice. In coming to this conclusion we consider (1) defendant was the owner of the Caprice, (2) defendant was seen accessing the trunk of the Caprice shortly before it was stopped and no one else was seen accessing the trunk, (3) the fact defendant was driving a second car in tandem with the Caprice, and (4) the testimony of Officer Clark that defendant seemed to be looking at where Clark was parked before driving off, and it is common for persons involved in narcotics trafficking to be looking for plain clothed officers.

IV. DISPOSITION.

Defendant’s convictions for possession of psilocybin mushrooms with intent to deliver and failure to affix a tax stamp to said mushrooms are reversed.

All of the marijuana found (that found in the basement and that found in the car) was aggregated by the State into a single charge of possession of the marijuana with intent to deliver and a single charge of failure to affix a tax stamp. The jury returned a general verdict of guilty. We have concluded the State did not sufficiently prove that defendant had possession of the marijuana found in the basement. With that in mind, we must determine whether defendant’s convictions for possession of marijuana with intent to deliver and failure to affix a tax stamp to the marijuana should stand.

Defendant’s only challenge is to the sufficiency of the evidence to prove his constructive possession. He raises no other issues in his brief. We have found there is sufficient evidence to support defendant’s possession of the 112 grams of marijuana found in the trunk of the Caprice.

Defendant was charged with possession of marijuana with intent to deliver in violation of Iowa Code § 124.401(1)(d). The elements of which are 1) defendant knowingly possessed fifty kilograms or less of marijuana, 2) defendant knew that the substance was marijuana, and 3) defendant possessed the substance with the specific intent to deliver a controlled substance. See
Iowa Code § 124.401. We affirm defendant’s conviction for possession of marijuana with intent to deliver.

The elements of the crime of failure to affix a tax stamp to marijuana are 1) defendant knowingly possessed at least forty-two and one-half grams of marijuana, 2) defendant knew the substance possessed was marijuana, and 3) defendant failed to obtain and affix a tax stamp to the marijuana. See Iowa Code ch. 453B. We affirm defendant’s conviction for failure to affix a tax stamp to marijuana.

AFFIRMED IN PART AND REVERSED IN PART.