State of Iowa v. Douglas Eugene Hoppe ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0976
Filed July 9, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DOUGLAS EUGENE HOPPE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Lyon County, Nancy L.
Whittenburg, Judge.
Douglas Hoppe appeals his conviction for conspiracy to manufacture more
than five grams of methamphetamine, contending that the district court erred in
admitting certain evidence. AFFIRMED.
Adam Gregg, State Public Defender, and Billy A. Oyadare, Assistant
Public Defender, for appellant.
Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney
General, and Shayne L. Mayer, County Attorney, for appellee.
Heard by Danilson, C.J., Vaitheswaran and Doyle, JJ.
2
DOYLE, J.
Douglas Hoppe appeals his conviction for conspiracy to manufacture of
methamphetamine (more than five grams but not more than five kilograms), a
class “B” felony, under Iowa Code section 124.401(1)(b)(7) (2013).1 We affirm.
I. Background Facts and Proceedings.
By amended trial information, the State charged Hoppe with four
counts: (1) manufacture, deliver or possess with intent to manufacture or deliver
methamphetamine, or conspiracy to manufacture, deliver, and/or possess with
the intent to manufacture or deliver methamphetamine, in violation of Iowa Code
sections 124.401(1)(b)(7), subject to sections 124.401A, 124.411,and 124.413;
(2) gathering where controlled substances are being unlawfully used, in violation
of sections 124.407, 902.8, and 902.9(3); (3) tampering with, possessing, or
transporting anhydrous ammonia, in violation of section 124.401F; and
(4) possession of marijuana, a schedule I controlled substance, first offense, in
violation of section 124.401(5). Count one pertains to the span of time between
May 2012 and the date of Hoppe’s arrest, June 5, 2013.
The amount of methamphetamine seized after Hoppe’s arrest weighed a
little over three grams. Nevertheless, the State charged Hoppe with
manufacturing or conspiring to manufacture over five grams of
methamphetamine. A violation concerning more than five grams of
methamphetamine, but less than five kilograms, is a class “B” felony, while a
violation concerning five grams or less of methamphetamine is a class “C” felony.
1
All references herein are to the 2013 Code of Iowa.
3
See Iowa Code § 124.401(1)(b)(7), (c)(6). Because Hoppe was charged with the
more serious class “B” felony offense, he was subject to a twenty-five-year
sentence, rather than a shorter ten-year sentence for the lesser class “C” felony
offense. Iowa Code § 902.9(2), (4).
In a notice of additional minutes of testimony, the State listed as a witness
Nila Bremer, an Iowa Department of Criminal Investigations criminalist, stating
she would testify to “the amount of methamphetamine that could have been
produced with the amounts of ingredients purchased by [Hoppe] and co-
conspirators. The witness will testify that . . . her analysis would show that the
yield of methamphetamine lab would be in excess of five (5) grams.” Prior to
trial, Hoppe filed a motion to adjudicate law points. His motion asserted, among
other things, that the State’s proposed approach, i.e., theoretical yield analysis,
to meeting its burden of proof concerning the amount of methamphetamine to
which Hoppe manufactured or conspired to manufacture violated his right to due
process. Put another way, Hoppe asserted the use of expert testimony to project
a potential amount of methamphetamine, inferred from known amounts of
pseudoephedrine purchased, violated his constitutional due process rights. The
district court overruled Hoppe’s motion and held that the State could use expert
testimony to support and establish the conspiracy charge.
At trial, the State offered a report prepared by Bremer that contained an
analysis and calculations of theoretical yields of the amount of methamphetamine
Hoppe could have produced based on the pseudoephedrine hydrochloride
purchased by Hoppe and his co-conspirators. When asked whether Hoppe
objected to the introduction of the report, Hoppe’s counsel responded, “No
4
objection.” Hoppe made no objections to Bremer’s theoretical yield testimony,
nor did he object when Bremer testified that in her expert opinion Hoppe could
have manufactured more than five grams of methamphetamine based upon the
amount of pseudoephedrine or ephedrine purchased.
The State offered additional evidence to establish Hoppe manufactured or
conspired to manufacture more than five grams of methamphetamine. That
evidence included testimony by five men that they had collaborated with Hoppe
to manufacture methamphetamine. One such co-conspirator, Robert Stettnichs,
testified that Hoppe had been providing him methamphetamine since sometime
in 2012, at first for free and later in exchange for pseudoephedrine pills.
Stettnichs traveled to Sioux Falls some thirteen to sixteen times to purchase
pseudoephedrine pills for Hoppe. The purchases were corroborated by
independent evidence. Each box he purchased contained ninety-six pills. He
testified that Hoppe would give him half to three-quarters of a gram of
methamphetamine in exchange for a box of pseudoephedrine pills. Other co-
conspirators, Michael VanSurksum, Wayne Koele, and Dalles Dodge had similar
dealings with Hoppe. Anthony Lucas sold pseudoephedrine pills to Hoppe in
exchange for cash and, on some occasions, some methamphetamine. After his
arrest, Hoppe told officers he manufactured methamphetamine and that with four
boxes of pseudoephedrine he could make approximately a golf ball size quantity
of methamphetamine.
After he rested his case, Hoppe filed a motion for judgment of acquittal,
claiming the State failed to meet its burden on the conspiracy charge. Hoppe
made the general claim that the State failed to meet its burden of proof but made
5
no reference to the violations of his constitutional rights Hoppe now alleges in his
appeal. The motion was overruled. The court sustained Hoppe’s motion for
judgment of acquittal concerning the charge of tampering with, possessing, or
transporting anhydrous ammonia, and that count was not submitted to the jury.
The jury returned guilty verdicts on the remaining three counts—
conspiracy to manufacture methamphetamine, promoting a gathering where
controlled substances are unlawfully used, and possession of marijuana.
Further, the jury specifically found “the amount of mixture or substance
containing a detectable amount of methamphetamine that [Hoppe] conspired with
others to manufacture . . .was more than [five] grams but not more than [five]
kilograms.”
Thereafter, Hoppe filed a motion in arrest of judgment. Hoppe noted that
his position was “rooted in his arguments earlier stated in his motion to
adjudicate.” The motion further argued that the State’s theoretical yield analysis
is unconstitutional because it violates the equal protection clauses of both the
United States and Iowa Constitutions. Hoppe also asserted “the statute,”2 as
applied to him, is unconstitutionally vague, impermissible, and “[a]lthough a
statute may not be ‘vague’ in the ordinary sense of the word, it may yet violate
due process requirements if it fails to provide explicit standards for those who
enforce it.” The district court overruled the motion. Hoppe was later sentenced
2
Hoppe made no reference to any particular statute.
6
to concurrent terms of incarceration not to exceed fifty years, ten years, and one
year, respectively for the three convictions.3
Hoppe now appeals his conviction of conspiracy to manufacture, deliver,
and/or possess with the intent to manufacture or deliver methamphetamine.4 He
asserts the district court erred in allowing the State to project the amount of
methamphetamine that could have been produced by Hoppe and his co-
conspirators based on the alleged quantity of precursor substances they had
purchased. Specifically, Hoppe alleges that this approach, known as theoretical
yield analysis, (1) violates his constitutional rights to due process; (2) violates his
constitutional rights to equal protection; and (3) is unconstitutionally vague as
applied to him. The State counters that Hoppe failed to preserve several of his
claims for review on appeal, but it argues that in any event, each claim fails on its
merits.
3
The fifty-year sentence was imposed for the conspiracy conviction—two times
the indeterminate maximum for a class “B” felony. For persons convicted of a second or
subsequent offense under chapter 124, Iowa Code section 124.411(1) authorizes an
imprisonment term of up to three times the term otherwise authorized. The ten-year
sentence was imposed on the gathering conviction, and the one-year sentence was
imposed on the possession of marijuana conviction.
4
We observe that witness names were not placed at the top of each page where
transcript testimony appears in the parties’ appendix. See Iowa R. App. P. 6.905(7)(c)
(“The name of each witness whose testimony is included in the appendix shall be
inserted on the top of each appendix page where the witness’s testimony appears.”
(emphasis added)). Having the name at the top of each page makes it much easier for
us to navigate an appendix, particularly when filed in electronic form. Additionally,
omissions of transcript pages were not indicated by a set of three asterisks. See Iowa
R. App. P. 6.905(7)(e). Furthermore, the exhibits included in the appendix were not
concisely described in the table of contents. See Iowa R. App. P. 6.905(4)(c). By this
note, we do not single out these parties or their attorneys, for we have made similar
observations in countless appeals. Our comment is directed to the appellate bar. While
the noted infractions may seem trivial, the violated rules are not just some rigmarole
designed to create more work for the appellate lawyer. Compliance with the rules saves
time, reduces frustration, and assists this court in meeting its mandate to achieve
maximum productivity in deciding a high volume of cases. See Iowa Ct. R. 21.11.
7
II. Scope and Standards of Review.
We review decisions made by a trial court that implicate a defendant’s
constitutional rights de novo. See State v. Hopkins, 860 N.W.2d 550, 554 (Iowa
2015). However, we review evidentiary rulings, including the admissibility of
expert testimony, for an abuse of discretion. State v. Neiderbach, 837 N.W.2d
180, 190 (Iowa 2013). We will not reverse on appellate review unless the district
court’s decision rests on grounds or on reasons clearly untenable or to an extent
clearly unreasonable. State v. Redmond, 803 N.W.2d 112, 117 (Iowa 2011).
We review challenges to the sufficiency of the evidence for correction of
errors at law. State v. Edouard, 854 N.W.2d 421, 431 (Iowa 2014). We
“consider all of the record evidence viewed in the light most favorable to the
State, including all reasonable inferences that may be fairly drawn from the
evidence.” State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012) (internal
quotation marks omitted). “We will uphold a verdict if it is supported by
substantial evidence.” State v. Jacobs, 607 N.W.2d 679, 682 (Iowa 2000).
III. Discussion.
Hoppe does not argue the theoretical yield evidence was inadmissible, nor
could he. At trial, Hoppe stated he had “no objection” to Bremer’s report and
made no objections to her testimony. Any evidentiary objection was waived. In
any event, such an objection would have no doubt been fruitless. In reviewing
nearly identical circumstances, our supreme court held a district court did not err
in admitting the same criminalist’s “expected yield from precursors” report. State
v. Casady, 597 N.W.2d 801, 806-07 (Iowa 1999). The court Casady found
Bremer’s testimony
8
clearly relevant because it was necessary to prove that the
conspiracy was to manufacture methamphetamine, and under Iowa
Code section 124.401(1)(b)(7), it was necessary for the jury to
determine if Casady conspired to make more than five grams of it.
The only way for the jury to determine that, without merely
speculating, was to hear from an expert.
Id. at 806. In another case, a panel of this court followed in the footsteps of
Casady and concluded Bremer’s potential yield evidence was relevant and had
sufficient indicia of reliability to be admissible. State v. Perry, No. 03-1822, 2005
WL 67531, at *3-4 (Iowa Ct. App. Jan. 13, 2005).
Recognizing the futility of attacking the admissibility of Bremer’s evidence
in this case, Hoppe identifies on appeal the “central issue [as] whether it is legally
permissible, absent a clear statutory authorization, for the State to project the
amount of methamphetamine that could have been produced by [Hoppe] and his
confederates based on the alleged quantity of precursor substances claimed to
have been purchased.” Essentially he asserts the State cannot use theoretical
yield evidence to boot strap a class “C” felony offense (five grams or less) to a
class “B” felony (more than five grams) when the amount seized was less than
five grams. Put another way, Hoppe contends, without saying so in so many
words, that if the theoretical yield evidence is not considered, the State failed to
establish he conspired to manufacture over five grams of methamphetamine, and
his constitutional rights were thereby violated. The fatal flaw in Hoppe’s
argument is that, even without considering the theoretical yield evidence, other
evidence supports the verdict that Hoppe conspired with others to manufacture
more than five grams of methamphetamine during the May 2012-June 5, 2013
period.
9
One of Hoppe’s cohorts in crime, Robert Stettnichs, testified that Hoppe
had been providing him methamphetamine since sometime in 2012, at first for
free and later in exchange for pseudoephedrine pills. Stettnichs made some
thirteen to sixteen pseudoephedrine pill purchases for Hoppe. The pills were
purchased by the box. This was corroborated by independent evidence.
Stettnichs testified that Hoppe would give him half to three-quarters of a gram of
methamphetamine he made in exchange for a box of pseudoephedrine pills.
Putting pencil to paper, a jury could reasonably conclude Hoppe furnished
Stettnichs with 6.5 to 12 grams of methamphetamine manufactured from the pills
provided by Stettnichs during the course of the conspiracy. This evidence alone
clears the five-gram hurdle.5 Viewing this evidence, as well as the evidence of
the actual weight of the seized methamphetamine, we conclude substantial
evidence supports the jury’s finding that Hoppe “conspired with others to
manufacture an amount [of methamphetamine] that was more than 5 grams but
not more than 5 kilograms.” With the verdict amply supported by sufficient other
evidence, we need not consider Hoppe’s constitutional arguments concerning the
projected yield evidence, nor do we need to consider the State’s error
preservation arguments.
5
In interpreting Iowa Code § 124.401(1)(b)(7), the supreme court held the statute
authorizes “the State to aggregate any manufactured substance falling under either or
both of [the manufacturing and conspiracy] alternatives in seeking to establish a
prohibited manufacture of methamphetamine.” State v. Royer, 632 N.W.2d 905, 908-09
(Iowa 2001).
10
IV. Conclusion.
Substantial evidence supports the jury’s verdict, even without considering
the theoretical yield analysis evidence. We therefore need not address Hoppe’s
due process, equal protection, and vagueness claims concerning the sufficiency
of the theoretical yield evidence. Accordingly, we affirm.
AFFIRMED.