No. 2-989 / 01-1982.Court of Appeals of Iowa.
Filed March 12, 2003.
Appeal from the Iowa District Court for Polk County, ROBERT J. BLINK, Judge.
The defendant appeals his judgment and sentence for possession of crack cocaine with intent to deliver. JUDGMENT AFFIRMED,SENTENCE VACATED AND REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, John Sarcone, County Attorney, and Bob DiBlasi, Assistant County Attorney, for appellee.
Considered by HUITINK, P.J, and MAHAN and VAITHESWARAN, JJ.
VAITHESWARAN, J.
Keith Morrison appeals his judgment and sentence for possession of crack cocaine with intent to deliver, in violation of Iowa Code section 124.401(1)(c)(3) (2001). He contends: (1) there was insufficient evidence to establish he specifically intended to deliver a controlled substance, (2) the district court applied an incorrect standard in reviewing his motion to override the jury’s verdict, and (3) the court impermissibly considered parole factors in sentencing him. We affirm the judgment but vacate the sentence and remand for resentencing.
I. Background Facts and Proceedings.
Des Moines police officers were dispatched to a home to investigate possible narcotic activity. When they arrived, they saw two men standing in the driveway and another man, later identified as Morrison, leaving the home. Morrison began walking away from the officers, and when ordered to stop, ran. Officers eventually apprehended him. He had a vial of crack cocaine and a pipe in his hand. A search of his pocket revealed a plastic baggie of crack cocaine, a napkin containing more of the same, and another pipe. The drugs weighed a total of 4.4 grams.
After finding these drugs, the officers returned to the home Morrison had left and conducted a consensual search of the premises. They discovered no additional illegal drugs. The two men previously at the scene had disappeared.
The State charged Morrison with possession with intent to deliver and interference with official acts. See Iowa Code §§ 124.401(1)(B); 719.1 (2001). A jury found Morrison guilty as charged.
Following trial, Morrison’s attorney filed a “motion to override the jury’s verdict,” essentially reiterating the substance of a written request Morrison had sent him. The district court denied the motion, then sentenced him. This appeal followed.
II. Sufficiency of the Evidence.
Morrison contends there was insufficient evidence “to support a finding that the defendant had any intention of delivering any substance to anyone.” We review a challenge to the sufficiency of the evidence on error, upholding the verdict if it is supported by substantial evidence. State v. Webb, 648 N.W.2d 72, 75
(Iowa 2002).
The jury was instructed that the State would need to prove the following elements:
1. On or about July 7, 2001, the Defendant knowingly possessed cocaine base “crack”.
2. The Defendant knew that the substance he possessed was cocaine base “crack”.
3. The Defendant possessed the substance with the specific intent to deliver a controlled substance.
A narcotics investigator for the police department testified that the quantity of drugs found on Morrison was consistent with drug dealing, as in his experience, people who were solely using the substance generally only carried between a quarter to a half gram. He stated, “[t]he rock in the plastic container could be several numerous chunks that could be broken off for individual sale.” He noted the napkin had small chunks as well as a larger chunk that could be broken up. While he agreed the presence of money, pagers, scales, or cell phones would have made for a stronger case, he noted that “typical street level dealers” might not carry these items. A jury reasonably could have found this evidence sufficient to support Morrison’s conviction for possession with intent to deliver. See State v. Dinkins, 553 N.W.2d 339, 342 (Iowa Ct.App. 1996).
III. Motion to Override Jury’s Verdict.
Morrison next argues the district court applied an incorrect standard in reviewing his motion to override the jury’s verdict. Specifically, he contends the court viewed the motion as a motion for new trial, but neglected to apply the “weight of the evidence” standard prescribed by State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998).
Reading the ruling in context, we are not persuaded that the district court considered the motion to be a motion for new trial. The court pointed out that Morisson’s motion challenged the sufficiency of the evidence supporting the possession with intent to deliver charge. Morisson’s counsel did not dispute this characterization. Although the court mentioned it “could” consider the motion as a motion for new trial, it determined that the motion should be treated as a motion in arrest of judgment.
As the motion was not styled a motion for new trial and was not deemed to be a motion for new trial, the district court was not obligated to apply the Ellis standard in ruling on it.
IV. Impermissible Factors.
Morrison finally contends the district court impermissibly considered the parole process in imposing his sentence. See State v. Remmers, 259 N.W.2d 779, 784-85 (Iowa 1977) (holding court could not base the length of sentence in part on a desire to lengthen the minimum sentence defendant would serve). At sentencing the district court stated:
I do not think it would be right to triple your sentence and imprison you for 30 years or up to 30 years. I don’t think it would be right. By the same token, I don’t think that would be right, given your past history, to — to impose a sentence of ten years, and I think, therefore, that the appropriate sentence is going to be not more than 15 years with a mandatory minimum of one-third served.
Now, I can’t make any guarantees, but in talking with the lawyers I think it’s reasonable to conclude that because good and honor time and work credits and program credits will apply against this sentence that you certainly, unless you’re a very troublesome fellow in prison, you’re certainly not going to serve the full fifteen years and the probability is great that you will serve far, far less than that.
I want you to know that one — one reason that I elected a — a term not more than 15 years compared to a term not more than ten is I think that will require you to serve a little longer in prison and it’s my hope that if you’re in there a little bit longer some effort can be made on your part and on the part of the Department of Corrections to — to make a serious and genuine effort to — to deal with this drug problem. Because you’re forty-one, you’re still relatively young, and I don’t want you to come out and — and cycle through this again, and so that is the Court’s sentence in this case.
(Emphasis added).
We believe the emphasized language reflects an intent to lengthen the mandatory minimum sentence Morrison would serve. Cf. State v. Vanover, 559 N.W.2d 618, 635 (Iowa 1997) (concluding district court’s remarks were merely an explanation of the mandatory minimum sentence the defendant would serve). Accordingly, we vacate the sentence and remand for resentencing.
JUDGMENT AFFIRMED, SENTENCE VACATED AND REMANDED FORRESENTENCING.