Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.
Vilaychith Khouanmany appeals from convictions of conspiracy to deliver a controlled substance, possession of a controlled substance with intent to deliver, and failure to possess a tax stamp.
Erin M. Carr of Carr & Wright, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, John Sarcone, County Attorney, and Andrea Petrovich, Assistant County Attorney, for appellee.
Considered by Potterfield, P.J., and Mullins and Bower, JJ.
Vilaychith Khouanmany appeals from convictions of conspiracy to deliver a controlled substance, possession of a controlled substance with intent to deliver, and failure to possess a tax stamp. She challenges the sufficiency of the evidence of possession to support any of the convictions. She also asserts there is insufficient evidence of an agreement to deliver marijuana to sustain the conspiracy conviction. Because there is substantial evidence of possession, we affirm the convictions of possession with intent to deliver and failure to possess a tax stamp. However, we conclude there was not substantial evidence of an agreement to deliver to support the conspiracy conviction. We therefore affirm in part, reverse in part, and remand for resentencing.
I. Background Facts.
From the testimony and other evidence presented at trial, the jury could reasonably find the following. On September 14, 2011, Khouanmany's apartment on Ingersoll Avenue was under surveillance by Des Moines police. Irene Atkinson drove Khouanmany to the apartment. Atkinson diverted the attention of the police officer watching the apartment and then returned to her car. Khouanmany came to the car carrying bags, climbed into the rear passenger seat, and told Atkinson to "just drive." When the two learned that police had issued a search warrant for Atkinson's car, Khouanmany asked to be let out. Atkinson saw Khouanmany throw the bags out of the vehicle and then Khouanmany climbed out. Atkinson took her vehicle to a garage and had another friend pick her up. When she returned to the location where Khouanmany had thrown the bags and exited the car, Khouanmany was gone.
The following day, Khouanmany's sister from Sacramento, California, called Atkinson and told Atkinson to "[g]o pick up [Khouanmany's] bags." When Atkinson could not locate any bags where she had let Khouanmany out of the car, she called Khouanmany's sister back and was told, "They are across the parking lot in the bushes." Atkinson found three bags, knew that at least one of them contained marijuana,  took them to an apartment building managed by her parents, and placed them in a utility closet to which she had keys. Khouanmany called Atkinson, asked her if she had "got her bags, " and asked Atkinson to "put it up safe."
When Atkinson later led police to the locked utility closet, the police found name-brand bags Atkinson recognized as belonging to Khouanmany. Within the bags were receipts,  clothing, and other items linking them to Khouanmany. Also found in the carrying bags were five bags of marijuana, which was of a quantity Detective Mike Stueckrath testified was "more than personal use, " as well as a digital scale and several baggies consistent with distribution. Detective Jeff Cronin testified that the weight of the marijuana ("a little under two pounds"), "plus the way it's separately packaged, " and the presence of a digital scale and packaging materials indicated distribution.
Following a jury trial, Khouanmany was found guilty of conspiracy to deliver a controlled substance with intent to deliver, possession of a controlled substance with intent to deliver, and failure to possess a tax stamp. She now appeals, contending there is insufficient evidence to sustain the convictions.
II. Scope and Standard of Review.
We review challenges to the sufficiency of the evidence for the correction of legal error. State v. Cashen, 666 N.W.2d 566, 569 (Iowa 2003). We uphold the jury's verdict if the record contains substantial evidence to support it. Id. Substantial evidence is the quality and quantity of proof that could convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Id. To gauge whether the evidence is substantial, we review the record in the light most favorable to the verdict. Id. We ...