State of Iowa v. Sergio Retana Jr. ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-0795
Filed June 25, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
SERGIO RETANA JR.,
Defendant-Appellant.
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Appeal from the Iowa District Court for Polk County, Arthur E. Gamble,
Judge.
A defendant appeals his conviction claiming the evidence was insufficient
to convict him. AFFIRMED.
Jeffery A. Wright of Carr & Wright, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney
General, John Sarcone, County Attorney, and Joseph Crisp, Assistant County
Attorney, for appellee.
Considered by Vogel, P.J., and Doyle and Mullins, JJ.
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MULLINS, J.
Sergio Retana Jr. appeals his conviction for conspiracy to deliver a
controlled substance, possession of a controlled substance with the intent to
deliver, and failure to possess a drug tax stamp. He claims the evidence
admitted at trial was insufficient to prove he possessed the methamphetamine
found in the car he was occupying. Because we find sufficient evidence to
support the element he possessed the methamphetamine, we affirm his
conviction and sentence.
I. Background Facts and Proceedings.
David Allen worked as a confidential informant for the police. With the
assistance of his police contacts, Allen arranged to purchase methamphetamine
from Joshua Turner. Prior to the controlled buy, the officers searched Allen and
his vehicle by patting Allen down while he remained seated in the vehicle,
searching the front of the car, and visually inspecting the back seat. Allen was
provided money to purchase the drugs and contacted Turner to arrange the
purchase. Allen picked up Turner and Retana at an arranged location and drove
them back to a Des Moines parking lot. The officers maintained surveillance on
Allen’s vehicle.
At the Des Moines parking lot, Retana and Turner got out of Allen’s car
and instructed Allen to drive around so that they could obtain the drugs from the
source. Turner and Retana left on foot. Police surveillance was momentarily lost
on Turner and Retana, but the officers maintained surveillance on Allen,
instructing him to return to the parking lot. Retana and Turner returned to the
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parking lot and got into Allen’s vehicle. Retana, who was in the back passenger
seat, passed a baggie with a white substance inside to Turner in the front
passenger seat who then passed it to Allen. Allen looked at the baggie and
handed it back to Turner.
The police pulled Allen’s vehicle over for a traffic stop and searched the
vehicle with Allen’s consent. The officers found methamphetamine in the front
console under the ashtray and another baggie wedged between the back
passenger seat and the frame. Each baggie was confirmed to contain
approximately fourteen grams of methamphetamine.
Retana was charged, along with Turner, with conspiracy to deliver a
controlled substance, possession of a controlled substance with the intent to
deliver, and failure to possess a drug tax stamp. Retana and Turner were tried
together. The first trial resulted in a mistrial when the jury could not reach a
verdict. However, at the second trial, Retana and Turner were found guilty as
charged. The court merged the conspiracy and the possession convictions and
sentenced Retana to twenty-five years on the conspiracy conviction and five
years on the drug tax stamp conviction, to be served consecutively.
Retana now appeals asserting the evidence was insufficient to prove he
possessed the methamphetamine.
II. Scope and Standard of Review.
We review challenges to the sufficiency of the evidence for correction of
errors at law. State v. Copenhaver, 844 N.W.2d 442, 449 (Iowa 2014). We will
uphold a verdict if it is supported by substantial evidence. State v. Brubaker, 805
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N.W.2d 164, 171 (Iowa 2011). Evidence is considered substantial if a rational
fact finder is convinced by the evidence that the defendant is guilty beyond a
reasonable doubt. Id. We look at all the evidence in the light most favorable to
the State, including all reasonable inferences to be drawn from the evidence.
State v. Brown, 569 N.W.2d 113, 115 (Iowa 1997).
III. Sufficiency of the Evidence—Possession.
Retana asserts on appeal the evidence is not sufficient to prove he had
possession of the methamphetamine found in the vehicle. He asserts the drugs
belong to Allen, in whose car the methamphetamine was found. Because the
drugs were not found on him, Retana claims the State had to prove he had
constructive possession of the drugs found in the car.
Possession in Iowa can be either actual or constructive. State v. Vance,
790 N.W.2d 775, 784 (Iowa 2010). Actual possession can be shown by direct
evidence—the drugs were actually found on the person—or it can be shown by
circumstantial evidence—the evidence shows the drugs were once in the
defendant’s possession. Id. Just because the drugs were not found on Retana’s
person when he was arrested does not mean the State is confined to only
proving constructive possession—which requires the State to prove the
defendant had knowledge of the controlled substance and the authority or right to
control it. See State v. Kern, 831 N.W.2d 149, 161 (Iowa 2013).
The evidence in this case consisted of Officer Doty testifying as to his
search of Allen and Allen’s vehicle before the controlled buy occurred. Officer
Doty searched Allen’s pockets and locations in the vehicle within arm’s reach of
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Allen. Specifically, he searched the center console area and the ashtray, where
one baggie of methamphetamine was found. While Officer Doty did not have
Allen step out of the vehicle so that the officer could search every crevice on
Allen’s body and in his vehicle, Officer Doty testified this type of search is
routinely done in controlled-buy situations so as not to draw attention to the
confidential informant. Surveillance was maintained on Allen, and no officer
observed any furtive movement of Allen, nor did Allen ever enter the back
passenger compartment, as would be required to place the second baggie of
methamphetamine under the back passenger seat.
Allen testified after Turner and Retana returned to his vehicle, Retana
passed a baggie containing methamphetamine to Turner, who in turn passed the
baggie to Allen. Allen then passed it back to Turner immediately before the
traffic stop. Allen testified that when the officer initiated the traffic stop, both
Turner and Retana were frantically trying to hide the drugs. The amount of
methamphetamine recovered by the officers was nearly eight times the amount
Allen had arranged to purchase from Turner. Allen denied “planting” the drugs in
the vehicle.
While Retana attacks Allen’s credibility based on his motivation to assist
the officers as a confidential informant, issues of witness credibility are left to the
jury. State v. Shanahan, 712 N.W.2d 121, 135 (Iowa 2006) (“The function of the
jury is to weigh the evidence and ‘place credibility where it belongs.’” (citation
omitted)). In addition, the State does not have “an affirmative duty to rule out
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every hypothesis except that of guilt beyond a reasonable doubt.” State v.
Bentley, 757 N.W.2d 257, 262 (Iowa 2008).
Although the contraband was not in Retana’s physical possession at the
time of arrest, viewing the facts in the light most favorable to the State as we
must in a sufficiency-of-the-evidence challenge, we conclude there is substantial
evidence the methamphetamine was in Retana’s possession immediately prior to
the arrest. We therefore affirm his conviction and sentence in this case.
AFFIRMED.