Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer, Judge.
The opinion of the court was delivered by: Danilson, J.
Juan Harris challenges the admission of evidence at trial, and the sufficiency of the evidence to sustain his possession of cocaine base with intent to deliver conviction. AFFIRMED IN PART, REVERSED AND VACATED IN PART, AND REMANDED FOR RESENTENCING.
Considered by Potterfield, P.J., and Danilson and Tabor, JJ.
Juan Denero Harris appeals, following a jury trial, from convictions of possession of a controlled substance with intent to deliver-crack cocaine, in violation of Iowa Code section 124.401(1)(b) (2011); possession of a controlled substance with intent to deliver-marijuana, in violation of section 124.401(1)(d); and two drug tax stamp violations pursuant to section 453B.12. Harris contends there is insufficient evidence that he possessed crack cocaine to sustain either the possession with intent to deliver or drug tax stamp convictions.*fn1 He also contends the district court abused its discretion in admitting pictures taken during the search of the residence on grounds they were irrelevant and unduly prejudicial. We conclude any error in the admission of the pictures was harmless. However, the evidence does not sufficiently connect Harris to the crack cocaine to sustain a finding of constructive possession, and we therefore reverse the convictions of possession with intent to deliver and the drug tax stamp violation related to cocaine and remand for resentencing.
I. Background Facts and Proceedings.
On March 23, 2011, officers executed a search warrant at an apartment in Waterloo leased to Keith Nelson. Harris was present in a "makeshift" bedroom in the apartment separated from the living room by a curtain. In the area surrounding Harris' bed, officers found a marijuana blunt, a potato chip bag containing nineteen plastic baggies of marijuana, another quantity of marijuana, $1400 in cash in a suitcase of DVD's and CD's (in plastic sleeves, not cases), an additional $100 found elsewhere, three cell phones, unused plastic baggies, other plastic baggies that appeared to contain residue of marijuana, a piece of mail addressed to Juan Harris at the address being searched, and a piece of mail addressed to Keith Nelson at the same address. None of the drug packages had an Iowa drug tax stamp.
In a box for plastic baggies in an unsecured kitchen drawer and beneath a piece of mail addressed to Nelson, the officers found two bags of crack cocaine knotted together. The amount of crack cocaine in the baggies appeared to one officer to be larger than the typical user would have. There was no tax stamp on either bag.
In Nelson's bedroom, officers found a plastic baggie containing other smaller black baggies, which did not appear to have been used; mail and identification for Nelson; papers with names and phone numbers on them; $637 in cash; a plastic bin containing thirteen small bags of marijuana and a number of DVD cases inside a T.V. cabinet; and additional baggies. Photographs were taken during the search. In several of the photographs taken in Nelson's room, there can be seen the covers of numerous DVD cases depicting naked women, and female and male genitalia.
A digital scale testing positive for marijuana and cocaine residue was found in Nelson's vehicle. In a later interview, Harris stated he earned money by selling CDs and DVDs. He admitted to police that he was a user of marijuana and that he had used Nelson's digital scale to weigh marijuana for his personal use.
Harris and Nelson were jointly charged with tax stamp violations and possession with intent to deliver both marijuana and crack cocaine. Nelson pleaded guilty prior to trial but refused to testify against Harris.
At trial, Harris sought to prohibit the State from introducing exhibits A-8, A-9, and A-15; each was an array of four photographs of pictures taken in Nelson's room. On exhibit A-8, one of the four photos showed DVD cases; on exhibit A-9, three of the four photos showed DVD cases; and on exhibit A-15, one of the four photos showed a DVD case. Harris' counsel argued the pictures containing the pornographic DVDs were irrelevant, and even if minimally relevant, the pictures were unduly prejudicial. The court overruled Harris' motions to exclude.
The jury convicted Harris on all charges. The district court sentenced Harris on these convictions, as well as on convictions from a subsequent trial. Harris appeals.
A. Evidentiary ruling.We review a trial court's evidentiary ruling for an abuse of discretion. State v. Wells, 629 N.W.2d 346, 352 (Iowa 2001). "An abuse of discretion occurs when the trial court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable." State v. ...