State v. Henderson

696 N.W.2d 5, 2005 Iowa Sup. LEXIS 62, 2005 WL 1048714

• Court: Supreme Court of Iowa
• Decided: May 6, 2005
• Docket: 03-0625
• Status: Published

Opinions

TERNUS, Justice.

The defendant, Argilee Henderson, appeals from a judgment of conviction after a jury found she was guilty of possession of marijuana and possession of methamphetamine. She claims the trial court erred in failing to grant her motion for judgment of acquittal on grounds the evidence was insufficient to establish that she possessed the drugs. Alternatively, Henderson argues she is entitled to a new trial because the court erred in admitting evidence of her prior conviction for possession of marijuana.

Henderson’s appeal was transferred to the court of appeals, where her convictions were affirmed. That court concluded there was sufficient evidence to prove Henderson had dominion and control over the drugs. In addition, the court of appeals held the district court did not abuse its discretion in admitting evidence of Henderson’s prior drug conviction. The court ruled this evidence was relevant to prove Henderson knowingly possessed marijuana, and the probative value of the prior-acts evidence was not outweighed by the danger of unfair prejudice.

This court granted the defendant’s application for further review. Upon our consideration of the parties’ arguments and the controlling legal principles, we vacate the court of appeals decision, reverse the district court judgment, and remand the case for a new trial. Although we think the evidence was sufficient to prove the defendant possessed the illegal substances, we conclude, the trial court abused its discretion in admitting evidence of Henderson’s prior drug offense. Because this error was not harmless, a new trial is necessary.

I. Sufficiency of the Evidence.

The defendant asserts the trial court erred in failing to grant her motion for judgment of acquittal based on the insufficiency of the evidence to establish that the marijuana and methamphetamine found by the police in her apartment belonged to her. See generally State v. Allen, 304 N.W.2d 203, 206 (Iowa 1981). (“A motion for judgment of acquittal is a means for challenging the sufficiency of the evidence to sustain a conviction....”). The standards' governing our review of such claims are well established:

We review a suffieiency-of-the-evidence ruling for correction of errors of law. If the verdict is supported by substantial evidence, we will uphold a finding of guilt. “ ‘Substantial evidence’ is that upon which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.” In conducting our review, we consider all the evidence, that which detracts from the verdict, as well .as that supporting the verdict. We view the evidence in the light most favorable to the State.

State v. Hagedorn, 679 N.W.2d 666, 668-69 (Iowa 2004) (citations omitted).

Viewed in a light most favorable to the State, the jury could have found the following facts. On August 22, 2002, Woodbury .County Deputy Robert Aspleaf served a writ of removal and possession at Henderson’s apartment. (Henderson was the only person on the lease.) The writ required Aspleaf to remove the defendant and her possessions from the apartment and place the landlord in- possession of the premises. Aspleaf was- accompanied by the landlord and three helpers brought by the landlord.

When this group arrived at Henderson’s apartment, the deputy knocked loudly several times, but no one answered. The landlord’s master key did not work because the door had been locked from the inside. Consequently, a helper forcibly kicked the door open, revealing the defendant standing on the other side of the doorway. Over profanity-laced protests from Henderson, the landlord and his helpers began to pack up Henderson’s belongings. The deputy attempted to calm her down, but the defendant’s agitation escalated to the point where she pushed one of the men who was packing her electronic components. Upon being informed she was under arrest, Henderson retreated to the only bedroom in the apartment and slammed the door shut. The deputy followed her and placed her under arrest for interference with official acts.

After other officers arrived to take Henderson to the police station, the deputy began to look at the items in the apartment to determine whether there was anything that should not be set out on the curb, for example, knives, weapons, or pornographic materials. During this process he discovered the following contraband: (1) on top of the refrigerator in the kitchen, a clear plastic bag containing what appeared to be marijuana; (2) on the coffee table in the living room, a’ homemade “pot pipe”,¹ an ashtray with pieces of a blunt² in it, and two clear plastic bags, one with a yellowish residue and one with remnants of plant material in it; (3) in the bedroom between the mattresses, a small silver tube of the type used to smoke methamphetamine; (4) in the same bedroom on the headboard, a similar, but larger-diameter, tube with burn marks on the ends, a homemade pipe or smoking device for marijuana made of tinfoil with burn residue, and a clear plastic bag containing what appeared to be methamphetamine; and (5) in an end table in the same bedroom, two bags containing what appeared to be marijuana, a forceps commonly used to smoke marijuana, a small piece of tinfoil commonly used to smoke methamphetamine with burn marks on it, and two outside barrels of ink pens that could be used to snort methamphetamine. The substance found on the refrigerator and the substance found on the headboard were tested and confirmed to be marijuana and methamphetamine, respectively. These items provided the basis for Henderson’s prosecution for two counts of possession of a controlled substance in violation of Iowa Code section 124.401(5) (2001).

Deputy Aspleaf testified at trial that another woman was present in the apartment during these events, Lisa Williams. Williams was cooperative and did not attempt to obstruct the eviction process. She told the deputy that she had only been staying at the apartment for a few days after having a fight with her mother. When the deputy asked her if any of the drugs they found were hers, Williams stated they were not.

The deputy also testified that both Henderson and Williams had prior convictions for possession of marijuana. Henderson had been convicted of this offense in 1998, and Williams’ conviction was in 1991.

In addressing the sufficiency of this evidence, we first examine the State’s burden of proof: “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). Henderson challenges the sufficiency of the State’s proof on the first element: her dominion and control over the marijuana and the methamphetamine.

Because the contraband was not found on the defendant’s person, the State sought to prove Henderson’s constructive possession of the illegal substances. See id. at 138 (“Possession can be either actual or constructive.”)- “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 existence of constructive possession turns on the peculiar facts of each case.” State v. Webb, 648 N.W.2d 72, 79 (Iowa 2002).

Notwithstanding the fact-specific inquiry on this element, inferences are often used to prove constructive possession. See id. at 76-79 (discussing history of inferences supporting constructive possession). One such inference of dominion and control arises when the premises on which the illegal substances are found are in the exclusive possession of the accused. State v. McDowell, 622 N.W.2d 305, 308 (Iowa 2001). That inference is of no assistance to the State here, however, because at the time of this incident, the premises were shared by Henderson and Williams. See Bash, 670 N.W.2d at 138; State v. Graves, 668 N.W.2d 860, 877-78 (Iowa 2003). Under these circumstances, the defendant’s authority or right to maintain control of the drugs must be established by proof in addition to the fact that the drugs were found in the defendant’s apartment. See Bash, 67Ó N.W.2d at 138; Webb, 648 N.W.2d at 77, 79. We think the record contains such proof.

There was no suggestion in the evidence that the contraband found in Henderson’s apartment belonged to anyone other than Henderson or Williams. We think the jury could have concluded from the very disparate reactions of these individuals to the presence of the deputy on August 22, 2002 that the drugs . belonged to Henderson. When the deputy’s party entered Henderson’s apartment, they were greeted by Henderson’s defiant opposition to their presence. She swore at them and insisted that she would move her own belongings. She yelled at them to leave and physically interfered with their efforts to pack her property. Eventually, she retreated to the bedroom,.specifically to the side of the bed where the methamphetamine was found. In contrast, Williams cooperated with the persons moving the defendant’s personal belongings and even carried some of Henderson’s clothes to Henderson’s car.

Henderson’s conduct implied guilty knowledge; Williams’ conduct did not. See Webb, 648 N.W.2d at 79 (stating a defendant’s incriminating actions when drugs are discovered support a finding that defendant had right to exercise control over drugs); State v. Cox, 500 N.W.2d 23, 25 (Iowa 1993) (“Admissions may be implied by the conduct of the defendant subsequent to a crime ... when such conduct indicates a consciousness of guilt.”). Certainly one could also explain the defendant’s response to the situation by the fact that she was the object of a forcible eviction from her residence. On the other hand, Williams’ obliging manner was not consistent with one who had something to hide. Moreover, Williams denied the drugs were hers.

Other facts also support a finding that the drugs belonged to Henderson. Illegal substances were found throughout the apartment, together with multiple items of drug paraphernalia, some of which showed signs of use. Although some of these items were in plain view, some were in drawers, or in the case of a pipe used to smoke methamphetamine, between the mattresses. The quantity of drugs and drug paraphernalia in the premises, their widespread disbursement throughout the apartment, and their location in places that would not ordinarily be used by a guest suggest that these items did not belong to a temporary visitor, but rather to the person residing there.

The defendant relies on our decision in Webb, where this court held there was insufficient evidence to connect the defendant to the illegal substances found in his apartment. 648 N.W.2d at 82. That case is easily distinguished; In Webb, the defendant shared the residence where drugs were found with two other individuals. Id. at 75. Although the other occupants of the residence were home at the time of the officers’ arrival on the scene, Webb did not get home until the search was well underway. Id. When he did arrive, he exhibited no suspicious behavior. Id. at 75, 80. Unlike the case before us, there were no circumstances that showed the drugs belonged to the defendant as opposed to the other residents of the apartment.

We conclude there is sufficient evidence in the present case to support a finding that Henderson had .the authority or right to exercise dominion , and control over the contraband found in her apartment. Therefore, the trial court did not err in denying the defendant’s motion for judgment of acquittal.

II. Admission of Evidence of Prior Acts.

Prior to trial, the defendant filed a motion in limine to preclude the State from offering evidénee of her conviction for possession of'marijuana four years before she was charged with the present offense. Henderson’s attorney argued the evidence was irrelevant, and even if relevant, its relevancy was substantially outweighed by the danger of unfair prejudice. At a'hearing on this motion, the State contended the evidence’ was offered to establish Henderson’s knowledge that the substance on top of her' refrigerator was marijuana. See Bash, 670 N.W.2d at 137 (stating, in a possession case, that State must prove the defendant “had knowledge that the material was a controlled substance”). -In response, Henderson’s trial counsel said: “I don’t believe anyone is saying Miss Henderson doesn’t know what marijuana is. She is saying the marijuana in her residence wasn’t hers.” The district court reserved ruling on this issue until trial. At that time the defendant’s objection to the prior-acts evidence was overruled without explanation.

“We review rulings on the admission of evidence of prior bad acts for an abuse of discretion.” State v. White, 668 N.W.2d 850, 853 (Iowa 2003). “An abuse of discretion occurs when the trial court ‘exercises its discretion on grounds clearly untenable or to an extent clearly unreasonable.’ ” State v. Greene, 592 N.W.2d 24, 27 (Iowa 1999) (citation omitted). Even though an abuse of discretion may have occurred, reversal is not required if the court’s erroneous admission of evidence was harmless. State v. Sullivan, 679 N.W.2d 19, 29 (Iowa 2004); Iowa R. Evid. 5.103(a).

“Evidence which is not relevant is not admissible.” Iowa R. Evid. 5.402. Relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Iowa R. Evid. 5.401. Even relevant evidence may be excluded, however, if its probative value is substantially outweighed by the danger of unfair prejudice. Iowa R. Evid. 5.403. “[PJrobative value” gauges the strength and force of the tendency of the challenged evidence to make the consequential fact more or less probable. State v. Plaster, 424 N.W.2d 226, 231 (Iowa 1988). Evidence that “appeals to the jury’s sympathies, arouses its sense of horror, provokes its instinct to punish, or triggers other mainsprings of human action [that] may cause a jury to base its decision on something other than the established propositions in the case” is unfairly prejudicial. Id. at 231-32 (citations omitted); see also 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 403.04[l][b], at 403-38 to 403-42 (Joseph M. McLaughlin ed., 2004). When the State seeks to offer evidence of prior acts, the prosecutor must “articulate a valid, noncharacter theory of admissibility for admission.” Sullivan, 679 N.W.2d at 28. That is because “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” Iowa R. Evid. 5.404(6).

As noted above, the prosecutor offered the challenged evidence to show the defendant’s knowledge of the nature of the substance found in her kitchen. Although the defendant contends her prior marijuana conviction does not tend to demonstrate she knew what the drug was, we disagree. We think her prior conviction makes it more probable that Henderson knew the material on top of her refrigerator was a controlled substance, namely, marijuana. See State v. Hall, 41 Wash.2d 446, 249 P.2d 769, 772 (1952) (“Knowledge of what is marijuana when once acquired is not likely to be forgotten.”). Thus, the State articulated a valid, noncharacter basis for admission of this evidence. Therefore, the court did not err in determining the prior-acts evidence was relevant.

We turn, then, to the trial court’s apparent decision that the probative value of this evidence was not substantially outweighed by its prejudicial effect. Our review of the trial court’s exercise of discretion in this case is hampered by the court’s failure to articulate how it balanced the probative value of this evidence against its prejudicial impact. Nonetheless, when we apply the pertinent factors, we conclude the unfair prejudice arising from the admission of this evidence substantially outweighed its minimal probative value. See Government v. Archibald, 987 F.2d 180, 186 (3d Cir.1993) (stating when trial judge fails “to explain the grounds for denying a Rule 403 objection, [reviewing court] may undertake to examine the record”).

In weighing probative value against unfair prejudice, the court should consider the following factors: (1) the actual need for the evidence in view of the issues and other available evidence, (2) whether there is clear proof showing the other crimes were committed by the accused, (3) the strength or weakness of the prior-acts evidence in supporting the issue sought to be proven, and (4) the degree to which the jury will probably be improperly influenced by the evidence. State v. Rodriquez, 636 N.W.2d 234, 240 (Iowa 2001). The second and third factors support admission of the challenged prior-acts evidence in this case. There is clear proof Henderson committed a prior act of possessing marijuana, as evidenced by her conviction, and we think her prior possession of this illegal substance is persuasive evidence she knew the material in the bag on top of her refrigerator was marijuana.

On the other hand, the actual need for this evidence was undeniably slight in view of the contested issues in the case and the other evidence available to the prosecution. Henderson’s defense was not that she thought the marijuana was a household herb such as marjoram or thyme; her defense was simply that the drugs belonged to Williams, not her. Moreover, there was abundant evidence found in the apartment that marijuana had been smoked there, indicating the owner of the bag of marijuana knew what it was. Under these circumstances, the need for the prior-acts evidence was marginal at best. See United States v. Schwartz, 790 F.2d 1059, 1062 (3d Cir.1986) (holding prior acts of selling cocaine had marginal relevance to knowledge or intent elements of current charge of selling cocaine where defendant’s sole defense was that he had not sold the drugs in question).

Balanced against the insignificant need for the prior-acts evidence was the strong prejudicial impact of this information. As we said in State v. Castaneda, “ ‘When jurors hear that a defendant has on earlier occasions committed essentially the same crimes as that for which [the defendant] is on trial, the information unquestionably has a powerful and prejudicial impact.’” 621 N.W.2d 435, 441 (Iowa 2001) (citation omitted); accord Schwartz, 790 F.2d at 1062 (holding prejudice from evidence of prior cocaine sales in prosecution for distributing cocaine “was very great”). Because we conclude the prejudicial effect of the prior-acts evidence outweighed its weak probative value, we hold the court abused its discretion in admitting this evidence.

The next step in our analysis is to determine whether this error obligates us to reverse the defendant’s conviction. Reversal is required in cases of nonconstitu-tional error when it appears “that the rights of the complaining party have been injuriously affected by the error or that he has suffered a miscarriage of justice.” Sullivan, 679 N.W.2d at 29; see also Iowa R. Evid. 5.103(a). In applying this test, “we presume prejudice — that is, a substantial right of the defendant is affected — and reverse unless the record affirmatively establishes otherwise.” Sullivan, 679 N.W.2d at 30 (emphasis omitted).

The trial court in the present case read a limiting instruction to the jury prior to allowing Deputy Aspleaf to testify that the defendant had a prior conviction for possession of marijuana. The jury was told this evidence was “for the limited purpose of determining whether or not the defendant had knowledge, in this case, that any substance she possessed, if she did possess any, was marijuana.” The court also admonished the jurors that they could “not use this evidence to decide whether the defendant carried out the acts involved in the crime charged in this case” and they could “not convict a person simply because [they] believe[d] [the defendant had] committed a similar act in the past.” Notwithstanding this instruction, we do not think the record in this case affirmatively establishes a lack of prejudice.

“When prior acts evidence is introduced, regardless of the stated purpose, the likelihood is very great that the jurors will use the evidence precisely for the purpose it may not be considered!:] to suggest that the defendant is a bad person, a convicted criminal, and that if he ‘did it before he probably did it again.’ ”

Castaneda, 621 N.W.2d at 441-42 (citation omitted). In Castaneda the trial court improperly admitted evidence of the defendant’s prior sexual acts in the defendant’s trial on charges of sexual abuse and indecent contact with a child. Id. at 438-39. This court held that even a proper limiting instruction would not have removed the unfair prejudice resulting from the improper testimony: The “testimony was so inherently prejudicial that no amount of admonition by the court was sufficient to remove the prejudice.” Id. at 442.

We reach the same conclusion here with respect to admission of the defendant’s prior drug conviction. While a limiting instruction can theoretically minimize the prejudice of evidence of prior acts, the effectiveness of such an instruction is greatly diminished where the prior act is the same crime at issue in the current prosecution and other evidence that would support a conviction is not overwhelming. See State v. Daly, 623 N.W.2d 799, 803 (Iowa 2001) (holding evidence that defendant had been convicted of same crime four years earlier “could very likely have a substantial effect on a jury, which, although instructed not to do so, could reasonably be expected to misuse the evidence as substantive proof of guilt”); cf. State v. Breitbach, 488 N.W.2d 444, 448 (Iowa 1992) (stating in a similar context, “to the extent that the State’s evidence on the matter in question is strong, the prejudicial effect of the challenged testimony will be correspondingly less, and, therefore, a cautionary instruction will suffice to insure the defendant receives a fair trial”). That is the situation here. It would be extremely difficult for jurors to put out of their minds knowledge that the defendant had possessed marijuana in the past and not allow this information to consciously or subconsciously influence their decision. See Sullivan, 679 N.W.2d at 24 (“[E]ven if the court gives a carefully crafted instruction limiting the significance of [prior-bad-acts] evidence, prejudice to the defendant is Vell-nigh inescapable.’ ” (Citation omitted.)). The very reason prior-bad-acts evidence is prejudicial is its persuasiveness that if a person possessed marijuana before, she probably possessed it again. See Sullivan, 679 N.W.2d at 24 (“Empirical studies have confirmed the courts’ fear that juries treat bad-acts evidence as highly probative.”).

In addition, the evidence of guilt in this case was not overwhelming. The State did not have the benefit of any of the traditional inferences of constructive possession to prove the marijuana and methamphetamine belonged to the defendant. Additionally, there were two persons living in the apartment when the drugs were confiscated. The primary circumstantial evidence that the drugs belonged to Henderson and not to her temporary guest — the defendant’s obstructive conduct when the officer served the writ of eviction — was capable of being explained by the defendant’s understandable anger at being evicted from her apartment.

We conclude this record does not affirmatively establish a lack of prejudice. Therefore, we reverse the defendant’s convictions for possession of marijuana and possession of methamphetamine. See id. at 30 (concluding evidence that defendant had committed same crime in the past was so inherently prejudicial that reversal was required); . Daly, 623 N.W.2d at 803 (same). This case is remanded for a new trial at which evidence of the defendant’s prior conviction shall not be admitted.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.

All justices concur except LAVORATO, C.J., who concurs specially and WIGGINS, J., who joins the special concurrence.

1 . The officer described a jar with a hole in it through which a piece of tubing runs. The officer testified marijuana is burned in the jar and smoke is inhaled through the tube.

2 . A blunt is a hollowed-out cigar that has been filled with marijuana.