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State v. Usher

Court of Appeal of Iowa

October 23, 2013

STATE OF IOWA, Plaintiff-Appellee,
v.
THADDEUS DYLAN USHER, Defendant-Appellant.

Appeal from the Iowa District Court for Clayton County, Margaret L. Lingreen, Judge.

Thaddeus Usher appeals his conviction following a jury trial for manufacturing a controlled substance (methamphetamine), in violation of Iowa Code section 124.401(1)(c)(6) (2009).

Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, Alan Heavens, County Attorney, for appellee.

Heard by Vogel, P.J., and Danilson and Mullins, JJ.

VOGEL, P.J.

Thaddeus Usher appeals his conviction following a jury trial for manufacturing a controlled substance (methamphetamine), in violation of Iowa Code section 124.401(1)(c)(6) (2009). Usher claims the district court erred in denying his motion to dismiss based on double jeopardy and merger grounds, because he previously pleaded guilty to possession of methamphetamine based on the same facts. Usher further asserts the district court erred when it found sufficient evidence to support the manufacturing conviction, and when it declined to issue a jury instruction outlining possession as a lesser included offense of manufacturing. Finally, Usher argues trial counsel was ineffective when he failed to make evidentiary objections to various testimony, as well as when he failed to request a spoliation instruction. Because we find the Double Jeopardy Clause and merger doctrine barred Usher's second prosecution for manufacturing methamphetamine following his guilty plea to possession, we need not reach the merits of Usher's other claims. We reverse and remand for dismissal.

I. Factual and Procedural Background

At trial, the jury could have found the following facts. On December 1, 2009, after receiving a tip from a confidential informant, police conducted a search of the trashcans outside the residence of Kevin Meder. They found several rolled up coffee filters, portions of miniature baggies, razor blades, pieces of folded-up tinfoil, one of which had black residue on it, and a meat wrapper containing the name Jim Stegger. On December 22, police again searched the trash and found multiple coffee filters, several pieces of tinfoil with a white substance that tested positive for methamphetamine, a twenty-ounce bottle with a hole in the cap, rubber tubing matching the hole in the bottle cap, pseudoephedrine bubble packs, empty lithium battery packages, two rubber gloves, miniature baggies, and two receipts showing the purchase of pseudoephedrine by Kevin Meder and Scott Pierce. Police searched the trashcans for a third time on December 29 and found more of the same items, as well as additional papers for Scott Pierce. Based on this evidence, law enforcement obtained a search warrant for the residence to look for items linked to the use, manufacture, or sale of methamphetamine.

On December 29, police executed the search warrant. Upon entering the house, officers observed Meder, Roger Tomkins, and Usher in the living room, as well as "some tinfoil . . . that appeared to have methamphetamine on it" and drug paraphernalia on the coffee table. Police also detected a haze of methamphetamine smoke in the air. Investigator Mark Kautman asked Usher "if there [are] any hazardous chemicals or containers that may be dangerous if law enforcement officers come about them." Usher replied "there [were] items in his room and walked [the officers] over there."[1]

Police proceeded to search the room. Usher "pointed out some areas where some items may be, " and officers noted "a little locked box" and empty glass jars. When asked what the jars were for, Usher responded "you know." At trial, Investigator Kautman testified the glass jars had a film or haze on their surface, which is consistent with what appears "on and around everything that's near" where methamphetamine is manufactured, and that these jars can be used in the manufacturing process. However, these jars were never tested for methamphetamine, fingerprinted, or preserved for evidence, as law enforcement destroyed them because they likely contained hazardous material.

Also in the bedroom, police found two small bags containing a powdery substance that tested positive for methamphetamine, as well as a small glass vial containing a white powder that was never tested. Investigator Kautman testified the methamphetamine found in one of the bags was somewhat wet and had likely been manufactured in the past eight to ten hours. This was consistent with the fact the bags also tested positive for "CMP, " a by-product resulting from methamphetamine produced using the metal-ammonia reduction method with ephedrine, lithium, and anhydrous ammonia. Other items consistent with manufacturing methamphetamine were found elsewhere in the house, such as the basement and Meder's bedroom.

After completing the search of the residence, officers transported Usher to the police station, where Usher admitted "[t]hat he had been using that evening and the [glass mason jars] that were found in his room did contain methamphetamine." Usher was then charged with possession of drug paraphernalia and possession of methamphetamine in violation of Iowa Code section 124.401(5). He pleaded guilty to the possession charge on June 22, 2010, and was sentenced the same day.

Because of some miscommunication between the city police officer and the county sheriff's office, the DCI lab report stating the confiscated items contained substances consistent with the manufacture of methamphetamine was not received by the city police until November 11, 2010. On December 27, 2010, a criminal complaint was filed charging Usher with manufacturing methamphetamine, and a trial information was filed on January 5, 2011. The trial information was subsequently amended to charge Usher as a habitual offender pursuant to Iowa Code section 902.8, and included the section 124.411 sentencing enhancement for second or subsequent offenses. The amendment also changed the offense date from December 27 to December 29, 2009.

Usher filed a motion to dismiss on May 15, 2012, claiming the prior conviction for possession of methamphetamine barred the instant prosecution under double jeopardy and merger principles. The district court denied his motion and the case proceeded to trial on May 17. At the close of the State's case and again at the close of all the evidence, Usher moved for a judgment of acquittal on the ground the evidence was insufficient to establish that he personally took part in manufacturing the methamphetamine. The district court denied the motion. Usher also requested the jury be instructed that possession is a lesser included offense of manufacturing. The district court ...


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