STATE v. TRUESDELL, 02-1529 (Iowa App. 9-10-2003)

No. 3-616 / 02-1529Court of Appeals of Iowa.
Filed September 10, 2003

Appeal from the Iowa District Court forLinn County, Thomas M. Horan, Judge.

Kirby J. Truesdell appeals his convictions for possession of precursors with intent to manufacture methamphetamine and for operating a motor vehicle while intoxicated. AFFIRMED.

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

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

Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.

HUITINK, P.J.

Kirby J. Truesdell appeals his convictions for possession of precursors with intent to manufacture methamphetamine in violation of Iowa Code section 124.401(4) (2001), and for operating a motor vehicle while intoxicated in violation of Iowa Code section 321J.2.[1] Truesdell claims: (1) the evidence was not sufficient to support his convictions; and (2) he was denied effective assistance of counsel.

I. Background Facts Proceedings

Truesdell was arrested by Cedar Rapids police officers following a shoplifting complaint by the manager of the local Hy-Vee store. The manager saw Truesdell leave the store with unpaid merchandise through an emergency exit and drive away. At the time of his arrest, police found seventy boxes of cold medicine and other merchandise taken from the Hy-Vee store in Truesdell’s possession.

Upon arrival at the Linn County Jail, officers noticed signs of intoxication including: strong odor of alcohol, slurred speech, dilated pupils, and loud speech. Truesdell refused to provide a breath sample and refused to perform a field sobriety test. The State charged Truesdell with driving while intoxicated, possession of precursors with intent to manufacture methamphetamine, theft, and driving while barred.

During his jury trial, Truesdell admitted that he stole the cold medicine from Hy-Vee, but denied that he intended to manufacture methamphetamine, or that he even knew how methamphetamine was produced. He stated he planned to sell the pills to a friend. Further, Truesdell testified to having a couple of beers earlier in the evening but claims he was not under the influence while in police custody. At the end of the State’s case, and at the conclusion of all the evidence, Truesdall made a motion for judgment of acquittal. The district court denied both motions.

The jury found Truesdell guilty of operating a motor vehicle while under the influence of an alcoholic beverage (Count I), possession of precursors with the intent to manufacture methamphetamine (Count II), driving while barred (Count III), and theft (Count IV). The district court sentenced Truesdell to probation and a fine of $2500 on Count I, a suspended sentence and a fine of $1000 on Count II, 120 days in jail and a fine of $500 on Count III, and 120 days in jail and a fine of $250 on Count IV, with the sentences on Counts I and II to run concurrently. Truesdell appeals only his convictions on Counts I and II.

On appeal, Truesdell asserts there is insufficient evidence to support the jury’s findings that he was intoxicated at the time he drove away from the Cedar Rapids Hy-Vee, and that he intended to manufacture methamphetamine. He also contends he was denied effective assistance of counsel. The State argues that Truesdell has not preserved error for a sufficiency of the evidence claim because the motions for judgment of acquittal were not specific.

II. Sufficiency of the Evidence

Truesdell’s trial counsel made a motion for judgment of acquittal at the end of the state’s case, and at the end of all the evidence. These motions provided, “The defense would move for a verdict of acquittal, Your Honor,” and “Yes, Your Honor, motion for a directed verdict for acquittal.” The district court denied both motions. Now on appeal, Truesdell asserts the motions should have been sustained because there is insufficient evidence that he was intoxicated at the time he drove his Jeep from the Hy-Vee parking lot, and there is insufficient evidence that he intended to manufacture methamphetamine. However, Truesdell failed to mention these elements of the charges in his motions. “Accordingly, [Truesdell’s] motion for judgment of acquittal did not preserve the specific arguments he is now making for the first time on appeal.” State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996) (citing State v. Geier, 484 N.W.2d 167, 170-71 (Iowa 1992)). We find Truesdell has waived these arguments and therefore, we affirm.

III. Ineffective Assistance of Counsel

In the alternative, Truesdell argues he has been denied effective assistance of counsel for his attorney’s failure to preserve error on the sufficiency of the evidence claims. Ordinarily,we preserve ineffective assistance of counsel claims for postconviction proceedings to enable full development of the record and to afford trial counsel an opportunity to respond. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999). We therefore preserve Truesdell’s claim of ineffective assistance of counsel for possible postconviction relief.

AFFIRMED.