State of Iowa v. Jose Manuel Domingo Mendez ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0442
Filed April 17, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JOSE MANUEL DOMINGO MENDEZ,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,
Judge.
A defendant appeals his convictions for possession of methamphetamine
with intent to deliver, failure to possess a drug tax stamp, carrying a weapon, and
criminal gang participation. AFFIRMED.
Christopher R. Kemp of Kemp & Sease, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ.
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BOWER, Judge.
Jose Domingo Mendez1 appeals his convictions for possession with intent
to deliver methamphetamine with a firearm enhancement, failure to affix a drug tax
stamp, criminal gang participation, and carrying a weapon. Mendez claims the
district court erred in overruling his motion for judgment of acquittal and the State
introduced insufficient evidence to support all four counts. We affirm.
I. Background Facts & Proceedings
Shortly after midnight on July 15, 2017, Mendez was driving his girlfriend’s
vehicle with three passengers inside. After spotting a police car, Mendez
attempted to evade police. Mendez parked and all four persons ran from the
vehicle, but law enforcement officers caught and detained all four. Officers saw a
.22-caliber Mossberg assault rifle propped between the center console and front
passenger seat. During a search of the vehicle, officers found over twelve grams
of methamphetamine along with small baggies in an open center armrest console
by Mendez’s cell phone. During a pat-down, officers found half a gram of
methamphetamine in Mendez’s pocket along with $275 in cash. Mendez told the
officers he worked in construction and was paid in cash.
The passengers in the vehicle all wore the color of a known criminal gang,
and a bandana of the same color was found in the driver’s area of the vehicle. The
driver and two passengers had tattoos connecting them to the same gang. One
of the passengers admitted being a member of the gang.
1
The defendant is referred to in the record as Jose Domingo Mendez, and he signed
court documents as Jose Domingo and Jose Mendez. We will refer to him by the name
used in his brief—Mendez.
3
On August 23, the State charged Mendez with possession of a controlled
substance with intent to deliver including a firearms enhancement, in violation of
Iowa Code section 124.401(1)(b)(7) and (e) (2017); failure to possess a tax stamp,
in violation of sections 453B.3 and 453B.12; criminal gang participation, in violation
of sections 723A.1 and 723A.2; and carrying a weapon, in violation of section
724.4(1)(a).
The case proceeded to a jury trial in January 2018. Six police officers
testified on behalf of the State. A redacted video and audio recording of Mendez
in the back of a police vehicle was shown, during which Mendez denied knowledge
of the methamphetamine in the center console and the firearm leaning against the
front passenger seat. Mendez testified in his own defense, stating he did not know
the methamphetamine in the center console was there, his cousin brought the
firearm into the vehicle, and he was not a member of the gang but used to
associate with the gang’s members.
At the close of all evidence, Mendez moved for judgment of acquittal,
claiming the State had not established sufficient evidence of any count for
conviction. The court denied the motion and submitted the case to the jury. The
jury returned a guilty verdict on all counts. On March 7, the court sentenced
Mendez to the statutory indeterminate prison term not to exceed fifty years with a
one-third mandatory minimum.
Mendez appeals, claiming the evidence is insufficient to prove any of the
charges.
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II. Standard of Review
We review sufficiency of evidence claims for correction of errors at law.
State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014). We will consider all evidence
in the record, including all reasonable inferences fairly drawn from the evidence,
viewed in the light most favorable to the State. State v. Reed, 875 N.W.2d 693,
704 (Iowa 2016). We consider both inculpatory and exculpatory evidence. Id. We
will uphold a verdict supported by substantial evidence in the record. State v.
Showens, 845 N.W.2d 436, 440 (Iowa 2014). “Evidence is substantial when ‘a
rational trier of fact could conceivably find the defendant guilty beyond a
reasonable doubt.’” State v. Howse, 875 N.W.2d 684, 688 (Iowa 2016) (quoting
State v. Thomas, 561 N.W.2d 37, 39 (Iowa 1997)).
III. Sufficiency of the Evidence
On appeal, Mendez claims the district court erred in denying his motion for
judgment of acquittal, claiming the State failed to produce sufficient evidence to
prove any of the charges.
A. Possession with intent to deliver. Mendez claims the State failed
to prove he had constructive possession of the methamphetamine found in the
open center console of the vehicle he was driving. Mendez claims the
methamphetamine belonged to one of the passengers who placed it in the console
when leaving the vehicle.
“Constructive possession exists when the evidence shows the defendant
‘has knowledge of the presence of the controlled substance and has the authority
or right to maintain control of it.’” Reed, 875 N.W.2d at 705 (quoting State v.
Maxwell, 743 N.W.2d 185, 193 (Iowa 2008)). Inferences may be used to prove
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constructive possession. Id. “We do not presume possession where the
defendant does not own the car and a finding of constructive possession cannot
rest on mere proximity.” State v. Cashen, 666 N.W.2d 566, 572 (Iowa 2003).
When a controlled substance is found in a location under joint control, such as the
console of a vehicle, an inference of possession cannot be made without further
evidence. State v. Carter, 696 N.W.2d 31, 39 (Iowa 2005). The court must
determine if “all the facts and circumstances create a reasonable inference that
the person knew of the presence of the controlled substance and had control and
dominion over it.” Maxwell, 743 N.W.2d at 194. Intent to deliver may be inferred
from how the controlled substance is packaged, large amounts of cash, and the
quantity of the controlled substance. State v. Grant, 722 N.W.2d 645, 648 (Iowa
2006).
The vehicle was owned by Mendez’s girlfriend, and he was the only one
driving it that night. The officers conceded during trial that the console was within
easy reach of all four persons in the vehicle, but only Mendez had property mingled
with the drug container. Mendez’s phone was found in the same open center
armrest console by the methamphetamine. A glass pipe was found on the floor by
the passenger seat, but no other paraphernalia was found. Mendez was under the
influence of methamphetamine at the time of the arrest and had a personal amount
of methamphetamine in his pocket. Drugs were not found on the passengers, and
the officers testified the passengers did not exhibit signs of having taken
methamphetamine.
On the vehicle video, Mendez admitted to the officers he possessed the
personal-use quantity of methamphetamine found in his pocket but denied
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knowledge of the drugs in the center console. Mendez also denied knowledge of
the assault rifle clearly visible in the front near the center console in the car. The
video also shows Mendez exhibiting signs of being under the influence of
methamphetamine.
Viewed in the light most favorable to the State, the evidence is sufficient to
infer Mendez knew of and had control over the methamphetamine in the center
console. A reasonable jury could infer the armrest-console methamphetamine
belonged to Mendez when he had a smaller quantity in his pocket, his phone was
found in the same location, he had possession and control of the vehicle, and he
was under the influence while none of the passengers had drugs on them and
were not under the influence of drugs. The jury could infer an intent to deliver from
the presence of small individual baggies with the methamphetamine, the large
amount of methamphetamine in the car, and the amount of cash found on Mendez.
We find substantial evidence supports the jury’s verdict on possession with intent
to deliver.
The conviction for violation of tax stamp rises and falls with the conviction
relating to the methamphetamine in the center console. Because we find Mendez
had constructive possession of the center console drugs, we affirm his conviction
relating to the drug tax stamp.
B. Criminal gang participation. Mendez claims that although he had
been friends with gang members in high school, he never joined the gang and had
stopped spending time with them after being shot and a cousin’s deportation.
However, at least one of the passengers admitted to being part of the gang, all
three passengers wore the gang’s color, and a bandana in the gang’s color was
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found by Mendez’s seat, showing Mendez’s continued association with gang
members. Mendez and the two male passengers all had tattoos associated with
the criminal gang and its affiliates. Mendez communicated telephonically with
known gang members while in custody before trial. He knowingly transported in
town an assault rifle, which he testified belonged to an admitted gang member.
Viewed in the light most favorable to the State, substantial evidence supports the
jury’s verdict on criminal gang participation.
C. Carrying weapons and firearm enhancement. For the carrying
weapons charge, the State was required to prove Mendez, “within the limits of any
city, [went] armed with . . . any loaded firearm of any kind.” See Iowa Code
§ 724.4(1). For purposes of the statute, going armed includes “when an occupant
of a vehicle consciously and deliberately keeps . . . any loaded firearm where it is
readily accessible.” State v. Alexander, 322 N.W.2d 71, 72 (Iowa 1982). If a
firearm is not in the defendant’s exclusive possession, knowledge of the weapon
and control over it must be established by proof. Reed, 875 N.W.2d at 708.
Similarly, the firearm enhancement for a controlled-substances offense
requires the person be “in the immediate possession or control of a firearm” while
participating in the controlled substances violation. We have found Mendez’s
conviction of possession with intent to deliver to be supported by substantial
evidence. Immediate possession means actual possession on the person, while
immediate control may be established by close proximity to the firearm allowing
immediate dominion over it. State v. McDowell, 622 N.W.2d 305, 307 (Iowa 2001).
In either immediate possession or immediate control, the defendant must have had
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knowledge of the presence of the firearm. Id. The firearm was not found on
Mendez, making this an immediate-control case.
Mendez testified he saw his cousin, who sat in the passenger seat, bring
the firearm into the vehicle over Mendez’s objections, establishing his knowledge
of the presence of the weapon in the vehicle. His cousin told law enforcement the
firearm was in the vehicle when he entered. The firearm, an assault rifle, was
muzzle down in the passenger seat immediately next to the center console. Either
the driver or the passenger could easily reach the firearm. The State established
close proximity to the firearm allowing immediate dominion over it, as well as
evidence of control by Mendez. Viewed in the light most favorable to the State,
we find substantial evidence supports the jury’s verdict on the carrying weapons
charge and supporting the firearm enhancement to the possession charge.
We find a rational trier of fact could conceivably find Mendez guilty beyond
a reasonable doubt of all offenses.
AFFIRMED.