Preview:

IN THE COURT OF APPEALS OF IOWA No. 0-700 / 09-1408 Filed December 8, 2010

STATE OF IOWA, Plaintiff-Appellee, vs. ANTHONY DARNELL HERRON, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.

A defendant appeals from his convictions of possession with intent to deliver crack cocaine and failure to affix a drug tax stamp. REVERSED.

Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant Attorney General, Michael J. Walton, County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellee.

Considered by Vogel, P.J., and Doyle and Mansfield, JJ. Tabor, J., takes no part.

2 VOGEL, P.J. Anthony Herron appeals from his convictions of possession with intent to deliver a schedule two controlled substance (crack cocaine) in violation of Iowa Code sections 124.206(2)(d) and 124.401(1)(b)(3) (2007), and failure to affix a drug tax stamp in violation of Iowa Code section 453B.12. He asserts the district court erred in not granting his motion for judgment of acquittal for lack of sufficient evidence that he constructively possessed the crack cocaine. Because our case law requires proof of a nexus between the defendant and the contraband, and such is lacking in this case, we reverse. I. Background Facts & Proceedings. On June 21, 2008, police were summoned to the apartment of Chastity Howard to investigate a reported shooting. Other persons had been present in the apartment, but when police arrived, only Herron, Howard, and the shooting victim (Javid Woodson) remained. Herron was not forthcoming with truthful

information. He first gave officers a false name, "James Smith." He also gave them implausible renditions of his association with the victim and the circumstances of the shooting. Howard consented to allowing the police to search her apartment, which is located in a high drug-trafficking neighborhood. In the bedroom, the officers

discovered an open vent area, with a denim skirt wrapped around a plastic baggie. After a lab analysis, the baggie was determined to contain 24.21 grams of still moist crack cocaine. The moistness of the drug indicated it was freshly "cooked" and had not been allowed to dry for distribution purposes. Also found in the same bedroom were two digital scales in a dresser drawer. The scales were

3 described as having chunks of white residue on them. Other things found within the apartment included some marijuana on top of a television, an empty gun holster, and a duffel bag containing men's clothing and toiletries in the living room. No other drug paraphernalia was found in the apartment. Herron was questioned by Detective William Thomas. On his person,

Herron had $1368 dollars in denominations of: one $100 bill, eight $50 bills, thirty-four $20 bills, thirteen $10 bills, nine $5 bills, and thirteen $1 bills. Herron provided Detective Thomas with a false explanation of how he acquired the money along with other information that proved to be false. Herron was arrested and charged by trial information with count I, possession with intent to deliver crack cocaine and count II, failure to affix a drug tax stamp. After a trial, the jury returned verdicts of guilty on both counts of the information. After imposing a twenty-five year sentence on count I and five years on count II, the court suspended the sentences and placed Herron on probation. Herron appeals and challenges the sufficiency of the evidence. He

asserts that the district court erred in overruling his motion for judgment of acquittal, claiming the evidence failed to demonstrate he exercised constructive possession of the crack cocaine, as well as having the requisite knowledge of the substance.1 II. Scope of Review. We review challenges to the sufficiency of the evidence for correction of errors at law. State v. Webb, 648 N.W.2d 72, 75

Download STATE OF IOWA, Plaintiff-Appellee, vs. ANTHONY DARNELL HERRON, Defendant-Appella

Iowa Law