Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge.
The opinion of the court was delivered by: Vaitheswaran, P.J.
A defendant contends (1) there is insufficient evidence to support the jury's findings of guilt on two counts of delivery of a controlled substance, one count of possession of a controlled substance with intent to deliver, and one count of failure to possess a drug tax stamp; (2) the district court erred in instructing the jury on reasonable doubt; and (3) the district court considered an unproven charge in sentencing him. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
A drug user who purchased crack cocaine from Daeron Merrett on multiple occasions agreed to serve as a confidential informant. Law enforcement officers set up two controlled drug purchases on the streets of Des Moines and later executed a search warrant on a home that Merrett entered and exited during one of the controlled buys. They found crack cocaine in the garage of the home.
The State filed multiple charges against Merrett. A jury ultimately found him guilty of two counts of delivery of a controlled substance based on the two controlled buys, one count of possession of a controlled substance with intent to deliver based on the cocaine found in the garage of the home, and one count of failure to possess a drug tax stamp, also based on the drugs in the garage. The district court imposed sentence, ordering several sentences to be served consecutively.
On appeal, Merrett asserts (1) there is insufficient evidence to support the jury's findings of guilt, (2) the district court erred in instructing the jury on reasonable doubt, and (3) the district court considered an unproven charge in sentencing him.
I. Sufficiency of the Evidence
A. Delivery of a Controlled Substance
The jury was instructed that the State would have to prove the following elements on the first count of delivery of a controlled substance:
1. On or about October 14, 2010, the defendant or someone he aided and abetted delivered a controlled substance.
2. The defendant knew the substance delivered was cocaine base "crack."
See Iowa Code § 124.401(1)(c)(3) (2009). The jury received essentially
the same instruction on the second delivery charge.*fn1
The jury was also instructed that "delivery" means "the
actual, constructive, or attempted transfer of a substance from one
person to another."
Merrett contends the State did not present substantial evidence that he was the person who delivered the crack cocaine to the informant during the two controlled buys. See State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005) (setting forth the standard of review for challenges to the sufficiency of the evidence). A reasonable juror could have found otherwise.
One of the officers involved in the controlled buys testified he saw Merrett approach the informant's car and make contact with the informant. During the first buy, Merrett left, returned, "lean[ed] into the cooperator's vehicle," engaged in a "short . . . verbal exchange," and left again. During the second controlled buy, Merrett got into the passenger seat, and the car pulled away. Another officer saw the car park and saw Merrett exit and walk into an alley. Merrett returned on a bicycle, opened the back door of the informant's vehicle, and leaned into the compartment. Then, he rode away. Although the officers did not see the drugs change hands, the informant completed the narrative, testifying that, ...