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State of Iowa v. Lupe Cerda

January 24, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
LUPE CERDA, A/K/A MARVIN GONZALEZ, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge.

The opinion of the court was delivered by: Tabor, J.

Lupe Cerda appeals his conviction for possession with intent to deliver and conspiracy. AFFIRMED.

Considered by Potterfield, P.J., and Danilson and Tabor, JJ.

A jury convicted Lupe Cerda of possession with intent to deliver more than five but less than fifty grams of methamphetamine and conspiracy to deliver the controlled substance. The court merged the conspiracy count into the possession-with-intent conviction and entered judgment. Cerda filed an appeal raising two issues: (1) did the district court err in admitting into evidence a Utah uniform citation issued to him for marijuana possession, and (2) did the court err in allowing the State to proceed with a conspiracy charge despite the dismissal of that complaint following a preliminary hearing.

After reviewing the record, we find any error in the admission of the uniform citation did not affect Cerda's substantive rights. We also decline to grant relief based on the district court's denial of Cerda's motion to dismiss premised on Iowa Rule of Criminal Procedure 2.2(4)(e).

I. Background Facts and Proceedings

On March 14, 2010,Polk County narcotics officers received information from a confidential informant that he could buy two ounces of methamphetamine from a dealer he knew as Alex. The informant arranged to meet his dealer at a K-Mart parking lot on the east side of Des Moines. The informant told the officers the dealer would arrive in a small tan car with a blue trunk lid. While waiting with a detective in an unmarked car, the informant saw a metallic-colored Nissan Maxima with a dark trunk pull into the parking lot; the informant identified the passenger as his dealer.

Detective Tom Griffiths directed the informant to call his dealer to feign concern about a marked police car patrolling the K-Mart lot. The informant suggested to the dealer they should rendezvous at a nearby grocery store parking lot to avoid detection. After the informant's call, the Nissan left the parking lot, soon followed by narcotics officers in unmarked cars. The narcotics officers radioed for a marked patrol car to initiate a traffic stop based on a faulty taillight on the Nissan.

The Nissan's driver did not honor the patrol car's initial signals to stop, leading law enforcement on a rather low-speed chase through the east side of Des Moines. As the Nissan eventually came to a stop on the bridge over Four Mile Creek, the passenger-later identified by officers as Lupe Cerda-jumped out of the car and scaled a concrete barrier between the street and the sidewalk. Officer could see Cerda was holding a bag containing "a white crystal-type substance" which sprinkled onto the ground as he fled. As he ran from the officers, Cerda threw the bag over his head and into the middle of the creek. The police ordered Cerda to stop; he complied and was taken into custody. The officers also arrested Cerda's cousin David Carmenatte, who was driving the Nissan.

Four Mile Creek was running at flood stage, making it impossible for the officers to retrieve the bag. But the officers did find a trail of crystallized powder left by Cerda as he fled from the passenger seat inside the Nissan. The officers scraped together as much of the spilled methamphetamine as they could, recovering a total of 4.78 grams from the interior of the Nissan and from the pavement outside the passenger door. Detective Griffith described their difficulty in saving any more of the substance known by drug dealers as "crystal meth" or "ice":

It was tough to recover a lot of it because it had rained recently. It was also melting. It was an early spring day. We had been getting a lot of rain prior to that day . . . there is a lot of wet ground with sand from the winter months. And if you spill or pour or drop methamphetamine on sand, it sometimes is hard to distinguish from the sand. It also dissolves.

From inside the car, the officers also seized some documents and undeveloped photographs in an effort to identify the occupants and their connection with the Nissan and the methamphetamine.

On March 15, 2010, Detective Griffiths signed preliminary complaints against Cerda for possessing more than seven grams of a crystal substance which field tested positive for methamphetamine, conspiracy to distribute the substance, and a tax stamp violation. The district court held a preliminary hearing on March 24, 2010. After the hearing, the court dismissed the conspiracy complaint but scheduled arraignment on the remaining charges.

On April 12, 2010, the State prepared a three-count trial information charging Cerda and Carmenatte with conspiracy to deliver methamphetamine, possession with intent to deliver, and eluding. The prosecuting attorney attached minutes of testimony to the information, which was signed by a district court judge. The State amended the information on April 11, 2011, charging Cerda with conspiracy to deliver a controlled substance, in violation of Iowa Code ...


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