State of Iowa v. Timothy Roy Neades ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1624
Filed November 3, 2021
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TIMOTHY ROY NEADES,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Coleman McAllister,
Judge.
Timothy Neades appeals his conviction for possession of marijuana with
intent to deliver. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ.
2
SCHUMACHER, Judge.
Timothy Neades appeals his conviction for possession of marijuana with
intent to deliver. He argues there is insufficient evidence he had possession of
drugs and there is insufficient evidence the substance was marijuana. We find
there is substantial evidence to support the conviction. As a result, we affirm.
I. Background Facts and Proceedings
On July 23, 2020, two Polk County Sherriff’s deputies—Deputy Bach and
Deputy Nguyen—initiated a stop on a vehicle driven by Neades because the
vehicle’s license plates were registered to another car. Two more occupants, Mari
Ridley, and a man identified as Travis, were in the car. Mari rode in the front
passenger seat and Travis rode in the rear-right seat.1 Neades stated they were
returning from a trip to Walmart. The car contained multiple shopping bags from
the store. After informing the deputies he did not have a driver’s license or vehicle
insurance, Neades was asked to exit the vehicle. Neades also told deputies the
car belonged to his girlfriend. The deputies took Neades back to the patrol car,
leaving Mari and Travis unattended for a few minutes. After Neades’s removal,
one of the deputies spoke with Mari, who remained in the front passenger seat.
She initially told the deputy her name was Shari, but Neades informed the deputies
that her name was Mari. Neades told the deputies he had just met Travis that day.
The deputies arrested Mari for several outstanding warrants. After she was
arrested, she was placed in front of the cruiser’s dash-cam for about three minutes,
1There is some confusion over the identity of the man in the backseat. Neades
called him Trevor at trial, but most of the proceedings below refer to him as Travis.
For the sake of consistency, we refer to him as Travis.
3
partially blocking the dash-cam’s view of the vehicle. Travis was alone in the
vehicle during this time and neither deputy watched him closely. The deputies
then moved Mari to the backseat of the cruiser. They also had Travis exit the
vehicle, and Travis and Neades stood together away from the vehicle for the rest
of the encounter. Travis summoned a cab for a ride home and left the scene on
foot.
The deputies impounded the vehicle because of the mismatching license
plates. Deputy Bach conducted an inventory search, during which he found two
methamphetamine pipes, one in the center console and one in the glove
compartment. Upon this discovery, Deputy Bach conducted a probable cause
search of the rest of the car. He discovered a black pouch on the floorboard behind
the driver’s seat. Neades admitted the black pouch belonged to him. The pouch
contained Neades’s state-issued identification card, his social security card, a
small digital scale, and eight baggies containing plant material. Neades denied
any knowledge of the baggies and their contents.
Neades was charged and convicted following a bench trial of possession of
marijuana with intent to deliver as a habitual offender and as a second offender, in
violation of Iowa Code sections 124.401(1)(d), 124.411, 902.8, and 902.9(1)(c)
(2020).2 Neades appeals.
2 Neades was acquitted on charges of fraudulent use of registration and
possession of drug paraphernalia. He was also found guilty of driving on a
suspended license and failure to provide proof of financial liability. He stipulated
to prior convictions. Neades only appeals his possession with intent to deliver
conviction.
4
II. Standard & Scope of Review
We review claims challenging the sufficiency of the evidence for corrections
of error at law. State v. Lilly, 930 N.W.2d 293, 298 (Iowa 2019). “[W]e will uphold
a verdict if substantial record evidence supports it.” State v. Sanford, 814 N.W.2d
611, 615 (Iowa 2012) (quoting State v. Nitcher, 720 N.W.2d 547, 556 (Iowa 2006)).
“Evidence is substantial if it would convince a rational trier of fact the defendant is
guilty beyond a reasonable doubt.” State v. Harris, 891 N.W.2d 182, 186 (Iowa
2017). The standard applies equally to jury trials and bench trials. State v.
McFadden, 320 N.W.2d 608, 614 (Iowa 1982). “In making determinations
regarding the sufficiency of the evidence, we ‘view the evidence in the light most
favorable to the State, regardless of whether it is contradicted, and every
reasonable inference that may be deduced therefrom must be considered.’” Lilly,
930 N.W.2d at 298 (quoting Harris, 891 N.W.2d at 186). Evidence can be
circumstantial or direct.3 Id.
III. Analysis
Neades was convicted of unlawful possession of a controlled substance
with the intent to deliver. He argues there is insufficient evidence to establish that
3 Neades argues when the State relies wholly on circumstantial evidence to prove
an essential element of a crime, the evidence must be “entirely consistent with
[the] defendant’s guilt, wholly inconsistent with any rational hypothesis of his
innocence, and so convincing as to exclude any reasonable doubt that the
defendant was guilty of the offense charged.” State v. Reeves, 209 N.W.2d 18, 21
(Iowa 1973). However, the supreme court overturned that requirement just six
years later, in State v. O’Connell, 275 N.W.2d 197, 205 (Iowa 1979) (“We now
conclude [the rule in Reeves] is no longer a requirement in this jurisdiction. This
court has routinely observed that circumstantial evidence may be equal or superior
to direct evidence.”). It is so axiomatic that direct and circumstantial evidence are
equally probative that parties need not cite to the proposition in their briefs to this
court. Iowa R. App. P. 6.904(3)(p).
5
he had possession of the material found in the black pouch and insufficient
evidence the plant matter was marijuana rather than hemp.
“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.” State v. Bash, 670 N.W.2d 135, 137 (Iowa 2003). Neades
challenges the first element—possession and control over the contraband.
Possession can be actual or constructive. Id. at 138. Actual possession exists
when the contraband “is found on the defendant’s person.” Id. In contrast,
“constructive possession occurs when the defendant has knowledge of the
presence of the controlled substance and has the authority or right to maintain
control of it.” Id.The district court found that there was no actual possession because the
pouch was not on Neades’s person. Neades alleges the court erred in finding he
had constructive possession of the pouch. We look to several factors when
determining whether a defendant has constructive possession, including:
(1) incriminating statements made by the person; (2) incriminating
actions of the person upon the police’s discovery of a controlled
substance among or near the person’s personal belongings; (3) the
person’s fingerprints on the packages containing the controlled
substance; and (4) any other circumstances linking the person to the
controlled substance. Further, when the premises is a vehicle, the
court may also consider these additional factors: (1) was the
contraband in plain view; (2) was it with the person’s personal effects;
(3) was it found on the same side of the car or immediately next to
the person; (4) was the person the owner of the vehicle; and (5) was
there suspicious activity by the person.
6
State v. Dewitt, 811 N.W.2d 460, 475 (Iowa 2012) (quoting State v. Maxwell, 743
N.W.2d 185, 194 (Iowa 2008)).
There is sufficient evidence in the record Neades had constructive
possession of the marijuana. First, the baggies were found in the pouch that
Neades admitted belonged to him. The bag also contained Neades’s personal
items, including his state-issued identification card and his social security card. He
denied having any identification to the deputies, even though he had multiple forms
of identification in his pouch within arm’s reach. He was the driver of the vehicle,
and showed a familiarity of the car by explaining what was in the trunk even though
he claimed he had not been in the vehicle for a week.
Neades’s conduct also reveals he knew about the marijuana. For instance,
he claimed the pouch contained his cigarettes and dash-cam footage from the
deputies’ cruiser show him emerging from the vehicle with a fresh cigarette. A
deputy also testified smoking a cigarette is a common way defendants mask a
smell or calm their nerves. Neades consistently tried to distance himself from the
vehicle and its occupants. He claimed the car was his girlfriend’s but did not know
her date of birth.4 He also asserted his girlfriend usually carried his pouch, yet he
had just accessed it for a cigarette. He claimed to have just met Travis, but spoke
casually with him for an extended period once they both exited the car. Neades
told the deputies that he did not know Mari’s sister, Shari, but Mari told them that
he had known Shari for years. Neades admitted to being a marijuana user.
4 The car was not registered to his girlfriend.
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Neades also attacks the constructive-possession finding based on the
roughly three-and-a-half minutes Travis was alone in the car when Mari partially
obstructed the view of the dash-cam, as well as a brief period when both deputies
were talking to Neades and not watching Travis or Mari. Neades testified that he
left his black pouch in the driver’s side door when he exited the vehicle. Neades’s
assertions are not enough to undermine the district court’s conclusion. First, it
strains credibility to suggest Travis knew the dash cam was blocked and neither
deputy was watching him, providing the opportunity to hide the drugs. Similarly,
the dash-cam does not support the idea that Mari or Travis reached to the driver’s
side door, grabbed the pouch, and planted the drugs when the deputies were
speaking with Neades. Taken together, Neades’s inconsistencies and the actual
location of the drugs near his personal items and himself provide sufficient
evidence to support the court’s finding that he had constructive possession of the
drugs. There is substantial evidence that the pouch and drugs belonged to
Neades.
There is also sufficient evidence the contents of the baggies were
marijuana. Neades argues there is insufficient evidence because the State never
tested the drug in a way that conclusively shows it is an illegal narcotic. However,
Neades concedes, “the State is not required to test the purported drug.” See State
v. Brubaker, 805 N.W.2d 164, 172 (Iowa 2011) as amended on denial of reh’g
(Nov. 3, 2011). The State can instead rely on “circumstantial evidence to find that
the substance is an illegal drug.” Id.The Brubaker court found that testimony of a criminalist that pills seized
from a defendant’s car were “consistent in appearance” with a particular
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prescription drug was insufficient to support a finding that the pills were a
prescription drug. Id. Iowa courts have recognized that, for a person to be
convicted of a drug offense, the State is not required to test the purported drug.
Id. The Brubaker court’s analysis is worth quoting at length:
The finder of fact is free to use circumstantial evidence to find
that the substance is an illegal drug. Id. The reason for this rule is
that circumstantial evidence is not inferior to direct evidence. In a
given case, circumstantial evidence may be more persuasive than
direct evidence. Circumstantial evidence is equally probative as
direct evidence for the State to use to prove a defendant guilty
beyond a reasonable doubt.
The question is whether a rational trier of fact could have
found that all essential elements of the crime were established
beyond a reasonable doubt based on the evidence produced at trial.
“Inferences drawn from the evidence must raise a fair inference of
guilt on each essential element . . . .” An inference must do more
than “create speculation, suspicion, or conjecture.” Evidence that
allows two or more inferences to be drawn, without more, is
insufficient to support guilt.
The State chose not to have the pills tested or call a qualified
expert witness to testify that the pills were, in fact, Clonazepam.
Thus, there is no direct evidence that the pills found in Brubaker’s
vehicle were a prescription drug. Instead, the State relied on the
testimony of a criminalist who compared the pills to a picture of
Clonazepam. After making the comparison, the criminalist was only
able to say the pill was consistent in appearance with a
pharmaceutical preparation containing Clonazepam.
Id. at 172-73 (citations omitted).
The supreme court additionally stated:
[C]ircumstantial proof may include evidence of the physical
appearance of the substance involved in the transaction, evidence
that the substance produced the expected effects when sampled by
someone familiar with the illicit drug, evidence that the substance
was used in the same manner as the illicit drug, testimony that a high
price was paid in cash for the substance, evidence that transactions
involving the substance were carried on with secrecy or
deviousness, and evidence that the substance was called by the
name of the illegal narcotic by the defendant or others in his
presence.
9
Other courts have listed additional circumstantial evidence to
aid the [S]tate in its burden to prove a substance is an illegal drug.
These factors include whether ingestion of the substance caused a
change in the defendant’s behavior; whether the defendant referred
to the substance as “very good stuff,” and whether the known odor
of the substance identified it as an illegal drug. These factors are not
exclusive, and the [S]tate is not required to prove all of these
circumstances were present to sustain a conviction. Rather, we look
at these circumstances in light of the evidence produced at trial to
determine whether the [S]tate produced sufficient evidence to
support the proposition that the substance was an illegal substance
when expert testimony did not identify the substance as illegal.
Id. at 173 (citations omitted).
In Brubaker, the testimony presented at trial only indicated that a criminalist,
whose training or prior experience was unknown, compared the pills to reference
materials and, after doing so, could only state that the pills were “consistent in
appearance with a pharmaceutical preparation containing [C]lonazepam.” Id. The
criminalist did not specify that the pills were Clonazepam and did not explain how
she reached her conclusion that the pills were consistent in appearance with a
pharmaceutical preparation containing Clonazepam. Under that record, the
supreme court determined the criminalist’s testimony was not sufficient to allow
the jury to make a finding the pills were, in fact, Clonazepam without speculating.
Id. at 172–74.
The instant record is distinguishable from the limited testimony offered in
Brubaker. Here, the Department of Criminal Investigation’s criminalist testified the
substance was consistent with marijuana based on both macro and microscopic
examinations. The training of the criminalist is contained in this record. The lab
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also performed two other tests that indicated the substance was cannabis.5 While
the last two tests did not differentiate between marijuana and hemp, nothing in the
record supports Neades’s contention that the baggies contained hemp. Deputy
Bach testified the substance was consistent with marijuana based on his prior
experiences and the substance’s smell. Similarly, Detective Larson testified that
the substance’s appearance was consistent with marijuana. Larson explained that
they had never seen hemp packaged into small bags in the way the marijuana was
here. When presented with the baggies, Neades—who had admitted to using
marijuana—testified that they appeared to contain marijuana. The evidence
supports the district court’s finding that the baggies contained marijuana. That
finding is not based on speculation.
There is substantial evidence to support the district court’s findings that
Neades had possession of the baggies and that the baggies contained marijuana.
Sufficient evidence to support his conviction for possession of a controlled
substance with intent to distribute is present in the record.
AFFIRMED.
5One of the lab reports involved comparing the evidentiary sample to a known
positive.