IN THE SUPREME COURT OF IOWA
No. 55 / 05-0198
Filed August 11, 2006
STATE OF IOWA,
Appellee,
vs.
JEFFREY MICHAEL NITCHER,
Appellant.
Appeal from the Iowa District Court for Cerro Gordo County, James
M. Drew, Judge.
Defendant appeals his conviction for drug-related offenses.
AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED
WITH DIRECTIONS.
Linda Del Gallo, State Appellant Defender, and Theresa R. Wilson,
Assistant State Appellant Defender, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant
Attorney General, and Paul L. Martin, County Attorney, for appellee.
2
WIGGINS, Justice.
A jury found Jeffrey Nitcher guilty of aiding and abetting or conspiring
to manufacture a controlled substance, possession of products with the
intent to manufacture a controlled substance, and failure to affix a
controlled substance tax stamp. On appeal, he claims his trial counsel was
ineffective for failing to challenge a warrantless search of a residence where
he was an overnight guest. Our review of the record indicates that his trial
counsel was not ineffective because the officers conducted the warrantless
search with probable cause and exigent circumstances. Nitcher also
complains there was not sufficient evidence to support his convictions.
Again, our review of the record indicates sufficient evidence supported
Nitcher’s conviction on all three charges. We therefore affirm his
convictions and sentences.
Nitcher further asserts the district court used the sufficiency-of-the-
evidence standard rather than the weight-of-the-evidence standard when it
overruled Nitcher’s motion for new trial. Because the district court did use
an incorrect standard, we reverse the district court’s ruling denying
Nitcher’s motion for new trial and remand the case to the district court to
rule on his motion for new trial under the correct weight-of-the-evidence
standard.
I. Background Facts and Proceedings.
During the early morning hours of December 30, 2003, Cerro Gordo
County deputy sheriff Ryan Carroll was patrolling an area known as
Winnebago Heights when he detected the odor of ether in the air. He drove
around the area, parked his car, and walked until he was able to determine
that the odor was coming from a specific residence. Before entering the
property, Carroll called his lieutenant, George Fountas, for assistance.
3
When Fountas arrived, he and Carroll approached the house and
knocked on the east door. A person eventually came to the door, but did
not open it. A male voice from within the residence asked who was there.
Fountas informed the person they were from the sheriff’s office. The officers
then heard the person shuffle away from the door and heard noises that
sounded like the person was running toward the garage. Fountas stayed at
the door while Carroll walked around the garage toward the north and west
side of the residence in case someone attempted to leave. Carroll also called
for backup. At some point, the officers called the fire department due to the
potential fire hazard.
As Carroll walked toward the garage, he began to detect a very strong
odor of anhydrous ammonia. He also smelled a moderately strong odor of
ether as he walked toward the north side of the building. When he arrived
at the northwest corner of the residence, he noticed the west side of the
building had several windows and a doorway that were boarded up. While
standing in the northwest corner, Carroll continued to hear the shuffling of
a person or persons in the garage.
After the backup officers arrived on the scene, Carroll and Fountas
returned to the east door of the residence and knocked on the door again.
Lloyd Pierce eventually opened the door. Pierce was wearing sleeping attire.
The officers told Pierce they were at his door because of the chemical odors.
Pierce told the officers he was the owner of the residence, he had been
sleeping, and he was not aware of any chemical odors. Carroll observed
that Pierce appeared to be very anxious. Fountas asked Pierce for consent
to search the residence, which he gave and then withdrew. The officers led
Pierce out of the residence.
4
Concerned for the safety of any other person inside the residence, the
officers asked Pierce if there were others in the residence. Pierce told them
his wife and children were inside. Because the officers felt the odor of ether
in the entryway made it too dangerous to enter the residence, Carroll left
the premises to retrieve air-purifying respirators so that they could enter
the residence and look for anyone else inside. Fountas then yelled inside
the residence for anybody there to come out and three individuals did so.
The officers took Susan Payne, Larry Hull, and Nitcher into protective
custody and placed them inside the entryway of the residence.
When Carroll returned with the respirators, he and Fountas put their
respirators on and entered the residence. They testified their purpose for
entering the residence was to look for other people inside. They only looked
in spaces big enough for a person to be in. When the officers opened the
door to the garage, they immediately noticed a white cloud or haze and an
odor of ether strong enough to overpower their respirators. They backed
out of the garage for safety reasons and went outside the residence. They
did not find any other persons in the residence.
An officer placed the four individuals in his patrol car and transported
them to the station. While transporting these individuals to the station, the
officer noticed a smell of ether and anhydrous ammonia in the vehicle.
Before being processed at the station, the fire department decontaminated
these four individuals.
While other officers secured the residence, Carroll and Cerro Gordo
County chief deputy sheriff David Hepperly obtained a search warrant for
the premises. Pursuant to the warrant, Carroll, Fountas, and other officers
searched the exterior of the residence and property. Hepperly and Mason
City police investigator David Tyler, who were state-certified for the
5
investigation of methamphetamine labs, searched the interior of the
residence wearing self-contained breathing apparatuses and fireproof suits.
They entered the garage and opened the doors to ventilate the area.
Eventually the other officers entered the house to participate in the search
of the residence.
During the search of the garage area, officers found two glass pie
plates containing red or pink and off-white powdery substances, a plastic
container with an off-white powdery substance, and a white cloth shut
under the lid of the container in the same area. The substance in the
plastic container appeared moist. The room in which the officers found
these items was separated from an attached shed to the garage by a sliding
glass door that had been closed with a screw in the doorjamb. The room
contained the odor of ether. Additionally, the officers observed moist off-
white and pink or red substances between cracks in the floorboards and on
the doorsill to the room. The officers found other items as well, including a
foam plate with pink and white substances, a coffee filter with residue, a
plastic pitcher with red residue, and plastic tubing with residue. The
officers found no tax stamps for the substances in the plastic container or
in the floorboards, which were later determined to contain
methamphetamine.
In Pierce’s bedroom, the officers found a bottle of Heet and a nearly
empty one-gallon container of acetone, common ingredients in the
manufacture of methamphetamine. In another bedroom, officers found a
pair of blue jeans, a sweatshirt, and coffee filters. The clothes smelled of
ether and a pocket in the jeans contained an identification card issued to
Nitcher. Nitcher had been staying at the residence for a few days because
6
he had an argument with his girlfriend. The officers also found muriatic
acid in a washroom.
Some of the items found outside the residence included a small
propane tank with an altered fitting and a severed garden hose. This setup
would allow a person to draw the anhydrous ammonia that was in the tank
to another container using the hose. There was also a burn pile, which
contained rusted burnt cans of what the officers believed to be starting fluid
and camp fuel. The starting fluid cans had holes punched in them in order
to depressurize the ether.
The officers sent several of the items seized during the search to the
division of criminal investigation lab for testing. The analysis revealed all
the items contained pseudoephedrine, most contained methamphetamine
and CMP (a by-product created by the metal-ammonia reduction method of
methamphetamine manufacture, the metal here likely being lithium), some
contained lithium salt, and one contained triprolidine. The substance
found in the plastic container weighed 10.57 grams and contained
methamphetamine, pseudoephedrine, and CMP. The substance found on
one glass pie plate contained pseudoephedrine and the substance found on
the other glass pie plate contained pseudoephedrine and triprolidine.
The items tested were consistent with the various steps of the
lithium-ammonia reduction method of methamphetamine manufacture.
The residue on the pie plates was consistent with the preparation of the
precursor; the substances found on the foam plate were consistent with
solid waste from the solvent phase; the residue on the plastic tubing was
consistent with the bubbling process; and the white cloth in the plastic
container as well as the residue on the plastic pitcher were consistent with
the filtering stage. Additionally, the acetone was consistent with the
7
process used to whiten the final product. The lab found Hull’s fingerprint
on both pie plates and Nitcher’s fingerprint on one pie plate. The lab found
no fingerprints on the plastic container. The analysts were unable to
determine when the substances were generated or when the prints were left
on the objects.
The State charged Hull, Nitcher, Payne, and Pierce with: (1)
conspiracy to manufacture a schedule II controlled substance in violation of
Iowa Code sections 124.401(1) and 124.401(1)(b) (2003), a class “B” felony;
(2) possession of products with the intent to manufacture a controlled
substance in violation of Iowa Code section 124.401(4), a class “D” felony;
and (3) failure to affix a controlled substance tax stamp in violation of Iowa
Code sections 453B.1(3)(a) and 453B.12, a class “D” felony. Nitcher entered
a plea of not guilty.
Nitcher filed a motion to suppress the evidence seized by the officers
claiming the issuance of the search warrant lacked probable cause and
failed to identify the places searched by the officers. The court overruled
the motion. Nitcher filed a renewed motion to suppress the evidence seized
by the officers pursuant to the warrant, claiming the basis for the renewed
motion did not become evident until he took the depositions of the State’s
witnesses. The court denied the renewed motion.
Nitcher and Hull proceeded to a joint jury trial. Both defendants
moved for directed verdicts of acquittal at the close of the State’s case
regarding count I as to conspiracy and counts II and III as to possession.
The court overruled the motions. The jury found Nitcher and Hull guilty of
aiding and abetting or conspiring to manufacture a controlled substance,
possession of products with the intent to manufacture a controlled
substance, and failure to affix a controlled substance tax stamp.
8
Hull filed a motion for new trial claiming the verdict was contrary to
the law or evidence regarding possession, conspiracy, and intent to
manufacture or deliver. Hull also filed a motion in arrest of judgment on
the same day claiming there was insufficient evidence to support the
judgment as to the link between the manufacture of a controlled substance
and his presence in the house or his fingerprint on an object found in the
house. He also claimed the court should have sustained his motion to
suppress.
At the sentencing hearing, Nitcher joined in the motions filed by Hull.
The court overruled the motions. The court then sentenced Nitcher.
Nitcher appeals.
II. Issues.
On appeal we must consider: (1) whether Nitcher was denied effective
assistance of original and substitute counsel and a fair trial as guaranteed
by the United States Constitution and the Iowa Constitution; (2) whether
the evidence was insufficient as a matter of law to convict Nitcher of aiding
and abetting or conspiring to manufacture methamphetamine, possession
of products with intent to manufacture methamphetamine, and failure to
affix a drug tax stamp; and (3) whether the district court erred by applying
an incorrect standard in overruling Nitcher’s motion for new trial.
III. Discussion and Analysis.
A. Nitcher’s claim of ineffective assistance of counsel.
Nitcher claims original and substitute counsel did not render effective
assistance as guaranteed by the United States Constitution and the Iowa
Constitution. Claims involving the ineffective assistance of counsel have
their basis in the Sixth Amendment of the United States Constitution and
thus are examined de novo. State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005).
9
Although these claims are typically preserved for postconviction relief
actions, “we will address such claims on direct appeal when the record is
sufficient to permit a ruling.” Id.
Nitcher claims his trial counsel was ineffective for failing to challenge
the warrantless search of the residence. He argues there is no applicable
exception to the warrant requirement permitting Carroll and Fountas to
enter the residence without a warrant. He concludes that because the
warrantless search cannot be justified, the evidence obtained pursuant to
the search warrant is tainted and inadmissible.
“In order for a defendant to succeed on a claim of ineffective
assistance of counsel, the defendant must prove: (1) counsel failed to
perform an essential duty and (2) prejudice resulted.” Id. In order to satisfy
the first element, “ ‘counsel’s performance is measured against the standard
of a reasonably competent practitioner with the presumption that the
attorney performed his duties in a competent manner.’ ” State v. Doggett,
687 N.W.2d 97, 100 (Iowa 2004) (citations omitted). Prejudice exists where
“ ‘there is a reasonable probability that, but for the counsel’s unprofessional
errors, the result of the proceeding would have been different.’ ” Wills, 696
N.W.2d at 22 (citations omitted).
The Fourth Amendment assures “[t]he right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable
searches and seizures.” U.S. Const. amend. IV. The Fourteenth
Amendment of the United States Constitution makes the Fourth
Amendment binding on the states. State v. Freeman, 705 N.W.2d 293, 297
(Iowa 2005). In addition, article I, section 8 of the Iowa Constitution
guarantees “[t]he right of the people to be secure in their persons, houses,
papers and effects, against unreasonable seizures and searches shall not be
10
violated.” Iowa Const. art. I, § 8. Nitcher has not asked us nor have we
found a basis to distinguish the protection afforded by the Iowa
Constitution from that afforded by the federal constitution under the facts
of this case. Therefore, our analysis of the search issue will apply equally to
both the state and federal constitutional grounds raised by Nitcher. State v.
Simmons, 714 N.W.2d 264, 271 (Iowa 2006).
Initially, it is necessary to decide if Nitcher had a legitimate
expectation of privacy in the premises searched, both subjectively and
objectively. State v. Lovig, 675 N.W.2d 557, 562-63 (Iowa 2004). We have
said it is apparent the Fourth Amendment protects the physical entry of a
person’s home. Id. at 563. We have acknowledged a legitimate expectation
of privacy may extend to protect an overnight guest in the host’s home, but
we have also found no legitimate expectation of privacy if a guest is there
simply to conduct a business transaction. Id. Nitcher had been staying at
the residence for a few days because of an argument he had with his
girlfriend. As Nitcher and the State agree, Nitcher had a legitimate
expectation of privacy in view of his status as an overnight guest at the
residence.
Because a legitimate expectation of privacy existed, absent a
recognized exception to the search warrant requirement, searches and
seizures conducted without a warrant are per se unreasonable. Freeman,
705 N.W.2d at 297. These exceptions include “ ‘searches based on consent,
plain view, probable cause coupled with exigent circumstances, searches
incident to arrest, and those based on the emergency aid exception.’ ” Id.
(citation omitted). The State must prove by a preponderance of the evidence
that such a recognized exception applies. Id. In making this determination,
11
we must assess a police officer’s conduct based on an objective standard.
Id.
The State claims the officers had probable cause coupled with exigent
circumstances to enter the property near the garage area. There is probable
cause to conduct a search if, under the totality of the circumstances, “a
person of reasonable prudence would believe that evidence of a crime might
be located on the premises to be searched.” State v. Davis, 679 N.W.2d 651,
656 (Iowa 2004).
Carroll knew ether is one of the necessary ingredients to make
methamphetamine. The detection of the odor of ether coming from the
residence gave Carroll and Fountas reason to approach the door of the
residence to investigate the smell. See State v. Dickerson, 313 N.W.2d 526,
532 (Iowa 1981) (stating officers conducting an investigation did not invade
the defendant’s reasonable expectation of privacy by going to a door that
various members of society may use to call on the home in their personal or
business pursuits). After knocking and identifying themselves as police
officers, the officers heard the person at the door shuffle away from the door
and run toward the garage. Only then did Carroll proceed to the area by
the garage. Although Carroll walked across the property to get to the garage
area, under these circumstances it was reasonable for him to do so in order
to make contact with the person he heard at the door run toward the
garage, in case that person attempted to exit the residence through a door
near the garage. Cf. State v. Lewis, 675 N.W.2d 516, 527 (Iowa 2004)
(stating “[i]f the officer had attempted to contact [the defendant] at his front
door and received no response, the invasion of the curtilage may not have
violated [the defendant’s] Fourth Amendment rights”); State v. Breuer, 577
N.W.2d 41, 49 (Iowa 1998) (noting some courts have found if no one
12
responds to an officer’s knock, it does not violate the Fourth Amendment for
the officer to walk around the residence to look for another door to interview
a person). While walking toward the garage, Carroll detected the distinct
odor of anhydrous ammonia and heard the shuffling of a person or persons
in the garage.
After Pierce opened the door, the officers detected a strong odor of
ether in the entryway. They felt it was so strong that it was unsafe to enter
the residence without wearing their respirators. They also noted Pierce
appeared anxious and denied the obvious presence of the chemical odor.
Pierce also told the officers other persons were in the residence, including
his wife and children.
Under the totality of the circumstances, which included the odors of
ether and anhydrous ammonia, the sound of a person running from the
front door, the shuffling of the person or persons in the garage, Pierce’s
anxiousness, and his denial of the obvious presence of chemical odors, the
officers had probable cause to believe the occupants of the residence were
engaged in criminal activity related to the manufacture of
methamphetamine. See Simmons, 714 N.W.2d at 273 (stating “[b]ased on
[an officer’s] training and experience, coupled with the distinct odor of
anhydrous ammonia and the lack of household uses for it, we find the
officers had probable cause to believe the occupants of the apartment were
engaged in criminal activity”); see also Kleinholz v. United States, 339 F.3d
674, 677 (8th Cir. 2003) (explaining law enforcement’s detection of the odor
of ether, “a substance known to be used in the manufacture of
methamphetamine,” may alone establish probable cause).
“Exigent circumstances usually include ‘danger of violence and injury
to the officers or others; risk of the subject’s escape; or the probability that,
13
unless taken on the spot, evidence will be concealed or destroyed.’ ” State v.
Holtz, 300 N.W.2d 888, 893 (Iowa 1981) (citation omitted). In Simmons, we
noted an exigency posing a threat of danger to others allows officers to
“perform a limited search to remove the immediate risk.” 714 N.W.2d at
273. We found “[t]he volatile nature of and the dangers created by
methamphetamine labs can be exigent circumstances justifying an
immediate limited search of premises harboring such a lab,” and we
recognized various cases have upheld such searches to eliminate these
potential hazards where officers had probable cause to believe an ongoing
methamphetamine lab existed. Id.; see also Kleinholz, 339 F.3d at
677 (explaining the volatile nature of methamphetamine labs presents
exigent circumstances justifying an immediate limited search where law
enforcement smelled ether).
The record demonstrates exigent circumstances existed to allow the
officers to do a limited search of the premises to eliminate the dangers
associated with the manufacture of methamphetamine and to determine if
other persons were on the premises who might be exposed to those dangers.
The level of the chemical odor not only required the officers to wear
respirators while inside the residence, but also caused them to call the fire
department to the scene. When the officers entered the residence, they did
so only to see if any dangers associated with the manufacture of
methamphetamine were present and to make sure no other persons were
still in the residence. They only searched areas big enough to hold a
person. They did not open any drawers or search any areas where a person
would not fit. They left the residence when they were satisfied no
immediate danger existed and no more persons were in the residence.
14
Thus, Carroll and Fountas’s limited search of the residence was
justified based on probable cause and exigent circumstances. The
applicability of this exception to the warrant requirement means Nitcher’s
trial and substitute counsel were not ineffective for failing to challenge the
warrantless entry. See Wills, 696 N.W.2d at 24 (finding trial counsel was
not ineffective for failing to raise an issue with no merit). Accordingly,
Nitcher’s ineffective-assistance-of-counsel claim must fail. See State v.
Liddell, 672 N.W.2d 805, 809 (Iowa 2003) (recognizing failure to prove either
a breach of an essential duty or prejudice is fatal to ineffective-assistance-
of-counsel claims).
B. Nitcher’s claim the evidence was insufficient as a matter of
law to convict him of aiding and abetting or conspiring to
manufacture methamphetamine, possession of products with the
intent to manufacture methamphetamine, and failure to affix a
drug tax stamp.
Our review of Nitcher’s motion for judgment of acquittal requires us to
examine the sufficiency of the evidence supporting the jury’s guilty verdict.
State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003). “ ‘We review challenges to
the sufficiency of the evidence supporting a guilty verdict for correction of
errors at law’ ” and “ ‘[w]e will uphold a verdict if substantial record
evidence supports it.’ ” Id. (citation omitted). Evidence is considered
substantial if, viewed in the light most favorable to the State, it can
convince a rational jury that the defendant is guilty beyond a reasonable
doubt. Id. “Inherent in our standard of review of jury verdicts in criminal
cases is the recognition that the jury was free to reject certain evidence, and
credit other evidence.” State v. Anderson, 517 N.W.2d 208, 211 (Iowa 1994).
Because Nitcher does not assert the law in the instructions was incorrect,
but rather the evidence did not support the jury’s finding, we will examine
15
his claims in view of the instructions the district court gave to the jury.
State v. Shanahan, 712 N.W.2d 121, 134 (Iowa 2006).
In regards to count I, Nitcher claims the evidence was not sufficient to
prove he entered into an agreement with anyone to manufacture
methamphetamine or that he knowingly and actively participated or
encouraged such. The district court instructed the jury that the State relied
on the alternative theories of aiding and abetting as well as conspiracy to
prove its case under count I.
In particular, the jury was instructed that the crime of conspiracy to
manufacture a controlled substance required the State to prove the
following elements:
1. On or about the 30th day of December, 2003, [Nitcher]
agreed with one or more other persons:
a. that one or more of them would manufacture a
controlled substance, or
b. attempt to manufacture a controlled
substance.
2. [Nitcher] entered into the agreement with the intent to
promote or facilitate the crime of manufacturing a controlled
substance.
3. [Nitcher] or the other person or persons committed an overt
act.
4. The other person or persons were not law enforcement
agents investigating the offense or assisting law enforcement
agents in the investigation when the conspiracy began.
The court further instructed the jury “[t]he State must prove [Nitcher] and
the other person or persons came to a mutual understanding the offense
would be attempted or committed.”
As to the crime of aiding and abetting the manufacture of a controlled
substance, the jury was instructed that the State was required to prove the
following elements: (1) “On or about the 30th day of December, 2003,
16
[Nitcher] aided and abetted the manufacture of methamphetamine”; and (2)
“[Nitcher] knew that the substance he aided and abetted in manufacturing
was methamphetamine.” The court further instructed the jury:
“Aid and abet” means to knowingly approve and agree to the
commission of a crime, either by active participation in it or by
knowingly advising or encouraging the act in some way before
or when it is committed. Conduct following the crime may be
considered only as it may tend to prove a defendant’s earlier
participation. Mere nearness to, or presence at, the scene of
the crime, without more evidence, is not “aiding and abetting.”
Likewise, mere knowledge of the crime is not enough to prove
“aiding and abetting.”
Our review of the record causes us to conclude substantial evidence
supports the jury finding of guilt as to the crime of conspiracy to
manufacture a controlled substance. Nitcher does not dispute
methamphetamine was manufactured at some time at the residence.
Additionally, the facts that Nitcher’s clothing smelled of ether, the proximity
of the coffee filters to his clothes, and Nitcher’s fingerprint on a pie plate
that contained pseudoephedrine and triprolidine support the jury’s finding
he was involved with the process. The evidence of Nitcher’s fingerprint on
the pie plate not only supports the jury’s finding he was involved in the
process to manufacture methamphetamine, but also permits the inference
of an agreement. Cf. State v. Speicher, 625 N.W.2d 738, 742-43 (Iowa 2001)
(explaining an agreement to sustain a conviction for conspiracy may be
inferred from proof of involvement in the methamphetamine-manufacturing
process). The jury could believe Nitcher entered into such an agreement
with Hull, as his fingerprint was also on the pie plate. Finally, other
manufacturing-related items found by the officers in the same area as the
pie plate, the chemical odors, and the moistness of the substances found
could lead a jury to find the methamphetamine-making process had
occurred recently.
17
This same evidence also supports the jury’s finding that Nitcher
knowingly participated in or encouraged the manufacture of
methamphetamine; thus, there is substantial evidence to support a
conviction on the alternate theory of aiding and abetting. See State v.
Williams, 674 N.W.2d 69, 71 (Iowa 2004) (stating if alternative theories of
culpability are submitted to the jury and a general verdict is returned, all
theories must be supported by substantial evidence).
In regards to count II, Nitcher claims under the pre-amended version
of Iowa Code section 124.401(4),1 the statute governing this charge, there is
no evidence that he intended to use any precursors to manufacture
methamphetamine. Nitcher also contends the evidence failed to show he
constructively possessed the precursors.
The district court instructed the jury that the crime of possession of
products with the intent to manufacture a controlled substance required
the State to prove the following elements:
1. That on or about December 30, 2003, [Nitcher]
knowingly possessed any product containing any of the
following: ethyl ether, anhydrous ammonia, red phosphorous,
lithium, iodine, thionyl chloride, chloroform, palladium,
perchloric acid, tetrahydrofuran, ammonium chloride,
magnesium sulfate, or pseudoephedrine.
2. That [Nitcher] possessed any of the above with the
intent to manufacture a controlled substance, namely
methamphetamine.
The court further instructed the jury:
The word “possession” includes actual as well as
constructive possession, and also sole as well as joint
possession.
A person who has direct physical control of something on
or around his person is in actual possession of it.
1 See 2004 Iowa Acts ch. 1057, § 1 (replacing the phrase “intent to use the product”
with the phrase “intent that the product be used”).
18
A person who is not in actual possession, but who has
knowledge of the presence of something and has the authority
or right to maintain control of it either alone or together with
someone else, is in constructive possession of it.
If one person alone has possession of something,
possession is sole. If two or more persons share possession,
possession is joint.
“Unlawful possession of a controlled substance requires proof that the
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.” Bash, 670 N.W.2d at 137. Constructive possession
may not be inferred from a defendant’s sharing of the premises with others;
such possession must be established by other proof, such as
incriminating statements made by the defendant, incriminating
actions of the defendant upon the police’s discovery of the
controlled substance among or near the defendant’s personal
belongings, the defendant’s fingerprints on the packages
containing the controlled substance, and any other
circumstances linking the defendant to the controlled
substance.
Id. at 138.
Evidence supporting the jury’s finding that Nitcher was in possession
of products with the intent to manufacture a controlled substance includes
Nitcher’s presence in a residence emanating odors of ether and anhydrous
ammonia, clothing belonging to Nitcher that smelled of ether, coffee filters
found in close proximity to the clothing, and Nitcher’s fingerprint on a pie
plate that contained pseudoephedrine and triprolidine. The odors and
moistness of the substances found indicate the process had occurred
recently. Nitcher’s clothing containing an ether smell and his fingerprint on
the pie plate containing pseudoephedrine constitutes substantial evidence
to establish the possession link between him and the products when viewed
in the context of the other evidence in this case. See State v. Heuser, 661
19
N.W.2d 157, 166 (Iowa 2003) (finding a defendant possessed precursors
with the intent to manufacture methamphetamine based on the sum of
facts).
The State was also required to prove Nitcher himself intended to
manufacture methamphetamine. See State v. Truesdell, 679 N.W.2d 611,
617-19 (Iowa 2004) (examining the legislative change to section 124.401(4)
and concluding, in cases where the pre-amended version applies, “this
statute required the defendant intend to use the product to manufacture a
controlled substance” (emphasis added)). Here, Nitcher’s clothing smelled of
ether and was found in close proximity to coffee filters. This evidence
coupled with the burn pile that contained punctured cans of starting fluid
support the jury’s finding that he intended to manufacture
methamphetamine. Likewise, Nitcher’s fingerprint on the pie plate that
contained pseudoephedrine, which was consistent with the preparation of
the precursor in methamphetamine manufacture, support such intent. All
the items tested by the division of criminal investigation contained
pseudoephedrine. Again, the odors and moistness of the substances found
indicate the process had occurred recently. When viewed in the context of
the other evidence in this case, there was substantial evidence to support
the jury’s finding that Nitcher himself intended to use the products to
manufacture methamphetamine. See Heuser, 661 N.W.2d at 166 (finding
intent to manufacture methamphetamine from facts that circumstantially
proved such intent).
In regards to count III, Nitcher claims the evidence failed to show he
constructively possessed the methamphetamine, so he had no duty to affix
a drug tax stamp. In this count, the crime of a drug tax stamp violation
required the State to prove the following elements:
20
1. On or about the 30th day of December, 2003,
[Nitcher] knowingly possessed a taxable substance as defined
in [another instruction].
2. [Nitcher] possessed seven or more grams of the
taxable substance.
3. The taxable substance that [Nitcher] possessed did
not have permanently affixed to it a stamp, label or other
official indication of payment of the state tax imposed on the
substance.
The district court further instructed the jury that a “taxable substance” is
defined as “a controlled substance, a counterfeit substance, a simulated
controlled substance, or marijuana, or a mixture of materials that contains
a controlled substance, counterfeit substance, simulated controlled
substance or marijuana.”
The evidence that Nitcher’s clothing contained an ether smell and his
fingerprint was on the pie plate containing pseudoephedrine constitutes
substantial evidence to establish the connection between him and the
products. In the same area as the pie plates, there was an odor of ether,
the plastic container of methamphetamine, and methamphetamine between
cracks in the floorboards. The odors and moistness of the substances
found indicate the process had occurred recently. This constitutes
substantial evidence to support the jury’s finding as to the possession link
between Nitcher and the methamphetamine when viewed in the context of
the other evidence in this case. Cf. State v. Webb, 648 N.W.2d 72, 81 (Iowa
2002) (recognizing possession is a necessary component of a drug tax stamp
charge, and inferences of constructive possession must be drawn from facts
that “have a ‘visible, plain, or necessary connection’ with” such possession
(citation omitted)). Accordingly, there was substantial evidence to support
the jury’s finding of guilt as to the drug tax stamp violation.
21
Therefore, substantial evidence supported the jury’s finding that
Nitcher was guilty of conspiracy to manufacture a controlled substance,
possession of products with the intent to manufacture a controlled
substance, and failure to affix a drug tax stamp.
C. Nitcher’s claim the district court erred by applying an incorrect
standard in overruling his motion for new trial.
“The district court has broad discretion in ruling on a motion for new
trial,” and thus our review in such cases is for abuse of discretion. State v.
Reeves, 670 N.W.2d 199, 202 (Iowa 2003). A court may grant a new trial
where a verdict rendered by a jury is contrary to law or evidence. Id. at 201.
We have held the phrase “ ‘contrary to . . . evidence’ ” means “ ‘contrary to
the weight of the evidence.’ ” Id. (citations omitted). Unlike the sufficiency-
of-the-evidence analysis, the weight-of-the-evidence analysis is much
broader in that it involves questions of credibility and refers to a
determination that more credible evidence supports one side than the other.
Id. at 202.
The district court overruled Nitcher’s motion for new trial stating:
As I stated during Mr. Hull’s hearing, these are essentially a
reassertion of the same motions made during trial and for the
same reason they are rejected. Mr. Nitcher, the standard here
is whether there was evidence from which a jury could find you
guilty. The issue is not whether I agree or disagree with that
verdict, and I have concluded that there is sufficient evidence
to support the verdicts arrived at. So the motion -- or motions,
rather, are denied.
The court’s reference to Hull’s and Nitcher’s motions for directed verdicts of
acquittal during the trial where the court used the sufficiency-of-the-
evidence standard indicates the court did not engage in any weighing of the
evidence or consideration of credibility. See State v. Scalise, 660 N.W.2d 58,
66 (Iowa 2003) (finding a court used the sufficiency-of-the-evidence
22
standard based upon its use of certain language in its ruling, and noting an
absence of an independent evaluation of the evidence and determinations of
witness credibility).
In its brief, the State agrees the district court erred on this matter.
Accordingly, we must reverse the district court’s ruling denying Nitcher’s
motion for new trial and remand the case to the district court to rule on his
motion for new trial under the correct weight-of-the-evidence standard. See
State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998).
IV. Disposition.
Because the officers conducted the warrantless search of the
residence where Nitcher was staying with probable cause and exigent
circumstances, Nitcher’s trial counsel was not ineffective for failing to
challenge the search. Additionally, there was sufficient evidence to support
the jury’s guilty verdict on the charges of aiding and abetting or conspiring
to manufacture a controlled substance, possession of products with the
intent to manufacture a controlled substance, and failure to affix a
controlled substance tax stamp. We do find, however, the district court
improperly used the sufficiency-of-the-evidence standard rather than the
weight-of-the-evidence standard in ruling on Nitcher’s motion for new trial.
Consequently, we affirm the convictions but remand the case to the district
court to rule on the motion for new trial under the correct weight-of-the-
evidence standard.
AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED
WITH DIRECTIONS.
State Of Iowa Vs. Jeffrey Michael Nitcher
Combined Opinion