The Iowa Court of Appeals has released a new set of opinions today. I hope you'll be hearing about two related cases in the mainstream press, State v. Jeanine Thomas and State v. Larry Thomas.



THE FACTS

According to the opinion:



"After a couple of months of surveillance of the defendant’s home, police obtained a search warrant and executed it on January 24, 2003. While searching one of the bedrooms, officers discovered a hidden hole cut in the box springs. Inside the hole were lithium batteries, some of which had the outer casing removed, and a plastic bag of pseudoephedrine tablets, some of which had been crushed into powder. Other items related to drug manufacture, sale, or use were found in the home. In her husband Larry’s car officers found a homemade hydrochloric acid generator and muriatic acid. In the garage, officers found rubbing alcohol and an empty camping fuel container. Jeanine was home during the search and appeared to be under the influence of drugs. Larry was not home during the search."



The lithium and pseudoephedrine were found "when a battery fell out of a hole cut in the box springs of a bed as officers moved the bed. Shining a flashlight into the hole, officers discovered the batteries and a plastic bag of pseudoephedrine pills." The opinion indicates that the officers testified the bedroom was the defendants' (they lived in the home with their children).



The couple were tried as co-defendants in a jury trial on the charges of conspiracy to manufacture methamphetamine, possession of the precursor lithium, and possession of the precursor pseudoephedrine. In the jury trial, the State presented the testimony of three police officers and offered several exhibits. After the State rested, the defendants did not present any evidence. Larry’s counsel moved for a directed verdict on behalf of both defendants. Defendants rested, then moved for judgment of acquittal and renewed the motion for directed verdict. The court denied the motions and submitted the case to the jury, which found the defendants guilty. Then the Court held a bench trial regarding the fact that these were second or subsequent violations - evidence of a prior conviction is inadmissible in the jury trial phase of the proceeding. The theory is that it tends to prejudice the jury: "once a druggie, always a druggie, and why not just convict them regardless of the proof they did this crime or not." At the succeeding bench trial on proof of previous convictions, the court found both had been convicted before, making the current convictions second or subsequent offenses.







THE LAW

Criminal code sections used in the charge are as follows. (NOTE: these aren't necessary to understanding the case, so if they make your head spin, just skip them):



124.401 PROHIBITED ACTS -- MANUFACTURERS -- POSSESSORS -- COUNTERFEIT SUBSTANCES -- SIMULATED CONTROLLED SUBSTANCES -- PENALTIES

1. Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with the intent to manufacture or deliver, a controlled substance, a counterfeit substance, or a simulated controlled substance, or to act with, enter into a common scheme or design with, or conspire with one or more other persons to manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance, a counterfeit substance, or a simulated controlled substance.



124.101 DEFINITIONS

As used in this chapter: . . .

5. "Controlled substance" means a drug, substance, or immediate precursor in schedules I through V of division II of this chapter. . .



124.206 SCHEDULE II -- SUBSTANCES INCLUDED.

1. Schedule II consists of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name designated, listed in this section.

2. Substances, vegetable origin or chemical synthesis. Unless specifically excepted or unless listed in another schedule, any of the following substances whether produced directly or indirectly by extraction from substances of vegetable origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis: . . .

4. Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system:

a. Amphetamine, its salts, optical isomers, and salts of its optical isomers.

b. Methamphetamine, its salts, isomers, and salts of its isomers.



706.1 CONSPIRACY

1. A person commits conspiracy with another if, with the intent to promote or facilitate the commission of a crime which is an aggravated misdemeanor or felony, the person does either of the following:

a. Agrees with another that they or one or more of them will engage in conduct constituting the crime or an attempt or solicitation to commit the crime.

b. Agrees to aid another in the planning or commission of the crime or of an attempt or solicitation to commit the crime.

2. It is not necessary for the conspirator to know the identity of each and every conspirator.

3. A person shall not be convicted of conspiracy unless it is alleged and proven that at least one conspirator committed an overt act evidencing a design to accomplish the purpose of the conspiracy by criminal means.

4. A person shall not be convicted of conspiracy if the only other person or persons involved in the conspiracy were acting at the behest of or as agents of a law enforcement agency in an investigation of the criminal activity alleged at the time of the formation of the conspiracy.



124.101 DEFINITIONS

As used in this chapter: . . .

16. "Manufacture" means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container, except that this term does not include the preparation, compounding, packaging, or labeling of a controlled substance:

a. By a practitioner as an incident to administering or dispensing of a controlled substance in the course of the practitioner's professional practice, or

b. By a practitioner, or by an authorized agent under the practitioner's supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale.



124.401 PROHIBITED ACTS -- MANUFACTURERS -- POSSESSORS -- COUNTERFEIT SUBSTANCES -- SIMULATED CONTROLLED SUBSTANCES -- PENALTIES . . .

4. A person who possesses any product containing any of the following commits a class "D" felony, if the person possesses with the intent to use the product to manufacture any controlled substance: . . .

b. Pseudoephedrine, its salts, optical isomers, salts of optical isomers, or analogs of pseudoephedrine. . . .

f. Lithium.



124B.1 DEFINITIONS

As used in this chapter, unless the context otherwise requires: . . .

4. "Precursor substance" means a substance which may be used as a precursor in the illegal production of a controlled substance and is specified under section 124B.2.



THE RULING

The rulings for the couple on each count were identical:



"The jury instruction required proof the defendant “knowingly or intentionally possessed” the items. From the evidence presented a rational jury would be left to speculate or base its findings on suspicion or conjecture. See Casady, 491 N.W.2d at 797. We conclude there is insufficient evidence in the record to support the defendant’s convictions for possession of the precursors lithium and pseudoephedrine."



"We find insufficient evidence in the record from which a rational jury could find the defendant agreed to manufacture methamphetamine. A jury would have to speculate about who started preparation of the precursors because there was nothing linking either defendant to their preparation. Consequently, we reverse the defendant’s conviction for conspiracy to manufacture methamphetamine."



THE REASONING

The alleged precurser items were found in their home that the couple shared only with their children. Some of them, like acetone (nail polish remover) have an innocent use. Others, like lithium batteries with the case torn off and a "a homemade hydrochloric acid generator," appear to have no legitimate use outside the manufacture of meth.



The State had to prove that the defendants possessed the precursor items, and that they conspired to manufacture meth. At least the possession seems a no-brainer. So why were all charges dismissed?



Because the police did not find the lithium and pseudoephedrine in the hands of either defendant, they had to prove "constructive possession": to provide evidence the defendants had actual knowledge of the drugs and had the authority or right to maintain control of them.



The Court reviewed some prior caselaw in making this determination:



State v. Cashen, 666 N.W.2d 566 (Iowa 2003): The defendant was in the back seat of a car with three others, including his girlfriend on his lap. After a traffic stop, police found a plastic bag of marijuana wedged in the crevice between the seat back and seat, next to where Cashen was sitting. Even though Cashen admitted knowledge, there was no inference of dominion and control over them, and hence, no constructive possession.



State v. Dullard, 668 N.W.2d 585 (Iowa 2003): The defendant was in joint possession of the house with his mother and there was a handwritten note found with the precursors and other evidence of drug manufacture that linked the defendant to drug manufacture. The supreme court found constructive possession of precursors was proven.



State v. Bash, 670 N.W.2d 135 (Iowa 2003): Drugs were found in a box on a nightstand on the husband’s side of the bed. The wife told police that if there were drugs in the house, they would be in the box, but denied they were hers or that she had any authority or right to maintain control over the contents of the box. The supreme court stated, "the authority or right to maintain control includes something more than the 'raw physical ability' to exercise control over the controlled substance. The defendant must have some proprietary interest or an immediate right to control or reduce the controlled substance to the defendant’s possession."



In this case, the defendants made no incriminating statements or actions upon the discovery of the items. No fingerprints from either of them were on the items. No testimony indicated the defendants knew the items were hidden in the box springs. So the Court of Appeals found that there was not sufficient evidence to prove that either of them had dominion and control over the lithium and pseudoephedrine that was hidden in their own bed.



Regarding the conspiracy to manufacture meth claim, the Court noted that neither of the defendants fled law enforcement, could be shown to have been present when a meth lab was operating, or smell of the ether:



"Although the house, garage, and car contained many of the items needed to operate a meth lab, some of the items in the home have a legitimate use, such as the pliers, tinfoil, and acetone . . . the most a rational jury could find is that the defendant knew a meth lab could be made from the materials found at the scene."



CONCLUSION

It appears from the Court's ruling that the police must either have caught the defendants in the middle of operating the lab, or must have found some other evidence to prove that they controlled the items found in their own house, in their own bed. Like possibly a note, like State v. Dullard. I can see it:



"Honey, please pick up lithium batteries on your way home. Make sure you put it on the Meth Lab Inc. expense form - we've got to be better about keeping the business expenses separate from our personal charges. And for God's sake remember to drop off the delivery at Methwhore Streetcorner. The clients are complaining we were late three times last week.



Love,



Sweetie Pie"