No. 4-836 / 03-2037Court of Appeals of Iowa.
Filed February 24, 2005
Appeal from the Iowa District Court for Mahaska County, Michael R. Mullins (motion to suppress) and James Q. Blomgren (sentencing), Judges.
Edward Ralph Ziegler appeals following his conviction for conspiracy to manufacture methamphetamine. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Charles A. Stream, County Attorney, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
ZIMMER, J.
Defendant Edward Ralph Ziegler appeals from the judgment and sentence entered following his conviction for conspiracy to manufacture methamphetamine in violation of Iowa Code section 124.401(1)(c)(6) (2003). He asserts the following errors: (1) the district court erred in overruling his motion to suppress the evidence obtained after an illegal stop, (2) the district court erred in denying his motion for judgment of acquittal because there was insufficient evidence to support his conviction, and (3) his trial counsel was ineffective. We affirm.
I. Background Facts Proceedings
On February 23, 2003, at approximately 11:15 p.m. Mahaska County Deputy Sheriff Richard Adams was dispatched to a lightly populated area north of Oskaloosa to investigate a report of a car in the ditch. It was cold, windy, and snowy that night and the roads were completely snow-covered. Deputy Adams was able to locate the vehicle, but observed no one in the area.
As Deputy Adams was exiting his vehicle to investigate, he noticed another vehicle coming towards him on a gravel road. Deputy Adams turned on the emergency lights on his patrol car to warn the oncoming vehicle of his presence. After Deputy Adams activated his top lights, the vehicle came to a sudden stop, pulled into a driveway, turned around, and sped away in the opposite direction “at a high rate of speed.” Deputy Adams decided to follow the vehicle because he thought it might have some connection to the abandoned car in the ditch.[1]
Deputy Adams shut off his emergency lights and followed the vehicle. As Deputy Adams caught up with the vehicle near a curve in the road, he detected what he described as a “very, very strong smell of ether.” There were no other vehicles or buildings in the area. Based on Deputy Adams’s training and his experience in investigating drug labs, he concluded that he was following a mobile methamphetamine laboratory. He then activated his emergency lights and stopped the vehicle.
Deputy Adams approached the vehicle, a pickup truck, and identified the driver as the defendant, Edward Ziegler, and the passenger as Mark Visser. As Deputy Adams spoke with Ziegler, he detected the odor of ether coming from the cab of the pickup. Both Ziegler and Visser told Deputy Adams that prior to being pulled over they were out seeing a buddy somewhere in the area. However, they would not tell Deputy Adams who the buddy was or where the buddy lived.
Deputy Adams retrieved driver licenses from Ziegler and Visser and returned to his vehicle. He then ran a check on their licenses and called for assistance. After another deputy arrived, Deputy Adams approached the pick-up and asked Ziegler if he would consent to a search of the vehicle. Ziegler refused. Deputy Adams then told Ziegler that he believed he had “all the proximate cause [he] needed” to search the vehicle and asked the men to exit the truck. Deputy Adams proceeded to search the vehicle.
While searching the vehicle Deputy Adams found a police scanner, a hot plate, coffee filters, a water cooler smelling of anhydrous ammonia, several gym bags containing stopped rubber tubing, lithium batteries, and assorted tools, all items associated with the manufacture of methamphetamine. Both Ziegler and Visser were placed under arrest for conspiracy to manufacture methamphetamine.
After additional assistance arrived, Deputy Adams backtracked along the road looking for items that may have been thrown from the pickup as he was following it. He found more items related to the manufacture of methamphetamine, including: a gym bag containing tubing, coffee filters, bottle caps, and a container of liquid that later tested positive for methamphetamine. Despite a light snow falling, no snow was covering the bag. The next morning, Deputy Adams returned to the same area. At that time, he found a half a bottle of muriatic acid. Deputy Adams also located a broken jar in the snow at the location where he smelled ether the previous evening.
On March 28, 2003, the State charged Ziegler and Visser with conspiracy to manufacture methamphetamine. Ziegler and Visser filed a joint motion to suppress any evidence obtained from the traffic stop. In their motion, they claimed the search of the vehicle violated their constitutional rights because Deputy Adams did not have reasonable cause to believe criminal activity was afoot to stop the vehicle. At the suppression hearing, they also argued that even if Deputy Adams had reasonable grounds to stop them, he did not have grounds to search the vehicle. The district court overruled the defendants’ motion.
Following a jury trial, both Ziegler and Visser were found guilty of conspiracy to manufacture methamphetamine. On December 19, 2003, the district court sentenced Ziegler to ten years in prison and imposed a mandatory minimum one-third sentence pursuant to Iowa Code section 124.413. The district court then suspended the sentence and placed Ziegler on probation for five years. In addition, Ziegler was placed in a residential facility until maximum benefits were achieved. Ziegler appeals.[2]
II. Motion to Suppress
Ziegler contends his vehicle was illegally stopped. He submits that the investigatory stop of his vehicle cannot be justified by reasonable suspicion under Terry v. Ohio, 329 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). He maintains his rights were violated under the Fourth Amendment to the United States Constitution[3] and Article I, section 8 of the Iowa Constitution.
Because Ziegler asserts that his constitutional rights were violated, we review the record de novo based upon the totality of the circumstances. State v. Jackson, 542 N.W.2d 842, 844 (Iowa 1996). In our review of the district court’s ruling on defendant’s motion to suppress, we consider both the evidence presented during the suppression hearing and that introduced at trial. Id. We will uphold the district court’s ruling on a motion to suppress if there is substantial evidence to support the court’s findings of fact. State v. Frake, 450 N.W.2d 817, 818 (Iowa 1990). Evidence is substantial when a reasonable person would accept it as adequate to reach the same findings. Id.
When a defendant contests a warrantless search and seizure, the State has the burden to show that officers acted reasonably under one of the recognized exceptions to the warrant requirement Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 519, 19 L. Ed. 2d 576, 585 (1967). One exception to the warrant requirement allows an officer to stop a vehicle for investigatory purposes based on reasonable cause that a criminal act has occurred or is occurring. State v. Haviland, 532 N.W.2d 767, 768 (Iowa 1995). To meet the reasonable cause or suspicion standard a police officer must be able to articulate something more than an inchoate and unparticularized suspicion or hunch Id. The reasonableness of a stop is measured by whether the facts available to the officer at the moment of the stop would warrant a person of reasonable caution to believe the action taken was appropriate. Id. Because the constitutional reasonableness of a search or seizure is determined by an objective standard, the legality of a search and seizure does not depend on the actual motivation of the individual officers involved. State v. Predka, 555 N.W.2d 202, 205 (Iowa 1996).
With these principles in mind, we turn to the record in this case. Deputy Adams activated his emergency lights to warn an approaching vehicle of his presence while investigating a car in a ditch. He observed the vehicle stop, turn into a driveway, and drive away in the opposite direction. The vehicle’s response to his lights made Deputy Adams suspicious. He believed that the occupants of the vehicle might have had something to do with the car in the ditch. Because of his suspicions, Deputy Adams followed the vehicle, but did not attempt to stop it at that point.[4] While following the vehicle, Deputy Adams passed through a “cloud of ether.” There were no other vehicles or buildings in the area. After concluding that the only reason for ether to be noticeable was the presence of a mobile methamphetamine laboratory, Deputy Adams activated his emergency lights and initiated a stop of the vehicle.[5]
In overruling Ziegler’s motion to suppress, the district court concluded: “The deputy had `specific and articulable cause to reasonably believe criminal activity was afoot’ sufficient to satisfy a vehicle stop and temporary detention of the occupant.” We agree. The evasive conduct of the vehicle Adams observed coupled with the smell of ether, the time of day, the location, and surrounding conditions support the district court’s conclusion that Deputy Adams had reasonable grounds to stop Ziegler’s pickup. Accordingly, we conclude the district court correctly overruled Ziegler’s motion to suppress.
III. Sufficiency of the Evidence
Ziegler claims the evidence presented at his jury trial was insufficient to support his conviction. Consequently, he contends the district court erred in overruling his motion for judgment of acquittal.
We review Ziegler’s sufficiency of the evidence claim for correction of errors at law. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). In analyzing his claim we examine the record in the light most favorable to the State. See State v. Terry, 544 N.W.2d 449, 450 (Iowa 1996). We look for substantial evidence, including any inferences arising from the evidence, to support the jury’s verdict. Id. at 451. If the verdict is supported by substantial evidence, it is binding on this court. State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996). Evidence that could convince a trier of fact the defendant is guilty of the crime charged beyond a reasonable doubt is substantial evidence. Id.
On appeal, Ziegler contends the State failed to prove him guilty beyond a reasonable doubt because there was insufficient evidence of an agreement between he and Visser to manufacture methamphetamine and there was insufficient evidence that he or Visser committed an overt act to accomplish the manufacturing of methamphetamine. The State asserts that Ziegler failed to preserve this issue for appeal. We agree.
Although Ziegler’s counsel made a motion for judgment of acquittal, he failed to identify in the district court the specific elements of conspiracy to manufacture methamphetamine that were insufficiently supported by the evidence. State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999) (holding error not preserved where motion for judgment of acquittal does not specifically point out the deficiencies in the evidence). Instead, Ziegler’s counsel merely stated that the State’s case was missing “evidence or proof thereof of a conspiracy.” Since Ziegler did not make the arguments he is now asserting on appeal in district court, we need not address them. Id.
IV. Ineffective Assistance of Counsel Claims
Recognizing that error may not have been preserved in the district court, Ziegler forwards the alternative claim that his trial counsel was ineffective because he did not raise the specific sufficiency of the evidence claims now asserted on appeal. Ziegler also complains that his trial attorney should have objected to testimony by Deputy Adams which Ziegler believes was speculative.
We review Ziegler’s ineffective assistance of counsel claims de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998). To establish a claim of ineffective assistance of counsel, Ziegler has the burden to prove: (1) counsel failed in an essential duty and (2) prejudice resulted from this omission. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). With respect to the first element, Ziegler must prove his attorney’s performance was not within the normal range of competence. Crone, 545 N.W.2d at 270. As to the second element, Ziegler has the burden to establish his lawyer’s error resulted in an actual and substantial disadvantage, creating a reasonable probability that but for the error the outcome of the trial would have been different. Id. An ineffective assistance of counsel claim may be disposed of if the defendant fails to prove either prong. State v. Spurgeon, 533 N.W.2d 218, 219
(Iowa 1995).
While we often preserve ineffective assistance claims for postconviction proceedings, we consider such claims on direct appeal if the record is sufficient. State v. DeCamp, 622 N.W.2d 290, 296 (Iowa 2001). We conclude the record in this case is sufficient to address Ziegler’s claims.
We first consider Ziegler’s claim of ineffective assistance of counsel as it relates to the sufficiency of the evidence to prove conspiracy to manufacture methamphetamine. Our review of the elements of this crime and the record made at trial convinces us a motion for judgment of acquittal based on the grounds urged on appeal would not have been successful.
The State had the burden to prove that: (1) Ziegler agreed with Visser that one or both of them would manufacture or attempt to manufacture methamphetamine, (2) Ziegler entered into such an agreement with the intent to promote or facilitate the manufacture of methamphetamine, and (3) Ziegler, Visser, or another committed an overt act to accomplish the manufacturing of methamphetamine. State v. Weatherly, 679 N.W.2d 13, 16 (Iowa 2002). Ziegler contends the State failed to prove him guilty beyond a reasonable doubt because there was insufficient evidence of an agreement between he and Visser to manufacture methamphetamine and there was insufficient evidence that he or Visser committed an overt act to accomplish the manufacturing of methamphetamine.
Since a conspiracy is by nature clandestine, it will often rest upon circumstantial evidence and inferences drawn from that evidence. See State v. Ross, 573 N.W.2d 906, 914 (Iowa 1998) (holding evidence of an agreement may be direct or circumstantial). Thus, “[a]n agreement that, because of its purpose or the means contemplated, amounts to a conspiracy need not be formal or express, but may be a tacit understanding; the agreement may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the alleged conspirators.” State v. Casady, 597 N.W.2d 801, 805 (Iowa 1999) (citation omitted). However, circumstantial evidence that proves mere presence at the scene of the crime is not sufficient to show an agreement. State v. Speicher, 625 N.W.2d 738, 742 (Iowa 2001). We will indulge in “[a]ll legitimate inferences arising reasonably and fairly from the evidence” to support a verdict of conspiracy. Casady, 597 N.W.2d at 804-05 (citations omitted).
We find substantial evidence to support all of the elements of conspiracy to manufacture methamphetamine. Viewing the record in the light most favorable to the State, a jury reasonably could have found that: (1) Ziegler and Visser were together in the confined space of an active mobile methamphetamine laboratory, (2) Ziegler owned and was driving that mobile methamphetamine laboratory late in the evening at a remote location, (3) Ziegler attempted to avoid Deputy Adams by suddenly stopping, turning around, and speeding off in the opposite direction, (4) items associated with the manufacture of methamphetamine were thrown into the ditch on the right side of the truck by the passenger, Visser, while Deputy Adams was following the vehicle, and (5) Ziegler and Visser both told the deputy the same vague story about where they were prior to being pulled over. We believe the jury acted well within the bounds of reason in concluding there was substantial evidence that Ziegler was involved in a conspiracy with Visser to manufacture methamphetamine. Accordingly, we find the evidence sufficient to support the jury’s finding of guilt for conspiracy to manufacture methamphetamine. Therefore, Ziegler’s trial counsel was not ineffective for failing to include the grounds he now asserts on appeal in his motion for judgment of acquittal.
Ziegler also claims that his trial counsel was ineffective because he should have objected when Deputy Adams testified that the items used to manufacture methamphetamine which he found in the ditch on the passenger side of the vehicle were thrown from the passenger window of the vehicle. He argues that because Deputy Adams did not see the items being thrown from the vehicle, his testimony was speculative. The State contends that Deputy Adams’s testimony regarding the items found in the ditch was a fair inference drawn from circumstantial evidence within his personal knowledge. Given the relative position of the discarded items in relation to the vehicle, and the vehicle’s direction of travel, we agree it is fair to infer that the discarded items were thrown from the passenger window. Accordingly, we reject this assignment of error.
AFFIRMED.