Appeal from the Iowa District Court for Polk County, Arthur E. Gamble, Judge.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
The opinion of the court was delivered by: Zimmer, J.
Michael Troy McKinney appeals from his conviction for possession of pseudoephedrine with intent to manufacture methamphetamine. REVERSED AND REMANDED.
A jury found Michael Troy McKinney guilty of three drug-related charges: possession of pseudoephedrine with intent to manufacture methamphetamine; possession of a controlled substance, methamphetamine; and possession of a controlled substance, marijuana. On appeal, McKinney claims there was insufficient evidence to support his conviction for possession of pseudoephedrine with intent to manufacture methamphetamine. We reverse his conviction for that offense.
I. Background Facts & Proceedings
On September 29, 2003, an Altoona Wal-Mart Loss Prevention Officer, David Novencido, observed a nervous looking individual purchase the store limit of three boxes of pseudoephedrine and then leave the store.*fn1 Approximately ten minutes later, Novencido observed the same individual come back into the store and buy another three boxes of pseudoephedrine. Novencido immediately contacted the Altoona police and provided a description of the individual who purchased the pseudoephedrine and the vehicle he was driving.
Altoona Police Officer David Tinker responded to the call. When Officer Tinker arrived at the Wal-Mart parking lot, he saw McKinney enter a pickup truck and drive off at a high rate of speed. Officer Tinker activated his emergency lights and pulled the truck over. After approaching the truck, Officer Tinker learned that the driver was Michael McKinney and a passenger in the front seat was Stacy Wagaman*fn2 .
McKinney was unable to produce a driver's license and admitted his license was suspended. He also told Officer Tinker that he might be "wanted." Officer Tinker handcuffed McKinney and put him in the back of his patrol car. After confirming McKinney's driver's license was suspended and that there were two warrants outstanding for his arrest, Officer Tinker searched the truck.
Officer Tinker found four Wal-Mart shopping bags behind the driver's seat where McKinney had been sitting. Each bag contained three boxes of pseudoephedrine. Receipts in the bags showed that some of the twelve boxes had been purchased at the Altoona Wal-Mart and others at the Southeast 14th Wal-Mart in Des Moines. The pseudoephedrine boxes were the only purchases listed on the receipts. Officer Tinker also found a black zippered case in the driver's door molding containing a plastic bag with marijuana, two already rolled marijuana cigarettes, and a small digital scale.
Officer Melodee Tufts searched Wagaman's purse. Her search revealed the following items: (1) a plastic bag containing methamphetamine, (2) a "tooter" made from a hollow Bic pen, a device used to snort methamphetamine or cocaine, which had burn marks on its end and off-white powdery residue inside, and (3) a folded piece of aluminum foil, that could be used for smoking methamphetamine, which had burn marks on it.
After McKinney was read his rights at the police station, he admitted that any drugs that were found in the truck were his. McKinney told police he had put the methamphetamine in Wagaman's purse. He also admitted the digital scale was his and that he had purchased the twelve boxes of pseudoephedrine that day. McKinney told officers he was a user of both methamphetamine and marijuana. He said he smoked and snorted methamphetamine and smoked marijuana. McKinney admitted he was "high" on methamphetamine when he was arrested.
On October 30, 2003, the State charged McKinney with the following offenses: (1) possession of pseudoephedrine/ephedrine with intent to use it to manufacture a controlled substance, in violation of Iowa Code section 124.401(4) (2003) (Count I), (2) possession of methamphetamine, in violation of Iowa Code section 124.401(5) (Count II), and (3) possession of marijuana, in violation of Iowa Code section 124.401(5) (Count III). Following a jury trial, McKinney was found guilty on all three counts. On February 25, 2004, the district court sentenced McKinney to five years in prison on Count I, one year in prison on Count II, and 180 days in prison on Count III, all to run concurrently. McKinney appeals challenging his conviction on Count I only.
We review sufficiency of the evidence claims for correction of errors at law. State v. Button, 622 N.W.2d 480, 483 (Iowa 2001). We examine the record in the light most favorable to the State. See State v. Terry, 544 N.W.2d 449, 450 (Iowa 1996). We look for substantial evidence, including any inferences arising from the evidence, to support the jury's verdict. Id. at 451. If the verdict is supported by substantial evidence, it is binding on this court. State v. Crone, 545 N.W.2d 267, 270 (Iowa 1996). Evidence that ...