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IN THE SUPREME COURT OF IOWA
No. 55 / 05-0198 Filed August 11, 2006 STATE OF IOWA, Appellee, vs. JEFFREY MICHAEL NITCHER, Appellant.

Appeal from the Iowa District Court for Cerro Gordo County, James M. Drew, Judge.

Defendant

appeals

his

conviction

for

drug-related

offenses.

AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS.

Linda Del Gallo, State Appellant Defender, and Theresa R. Wilson, Assistant State Appellant Defender, for appellant.

Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, and Paul L. Martin, County Attorney, for appellee.

2 WIGGINS, Justice. A jury found Jeffrey Nitcher guilty of aiding and abetting or conspiring to manufacture a controlled substance, possession of products with the intent to manufacture a controlled substance, and failure to affix a controlled substance tax stamp. On appeal, he claims his trial counsel was ineffective for failing to challenge a warrantless search of a residence where he was an overnight guest. Our review of the record indicates that his trial counsel was not ineffective because the officers conducted the warrantless search with probable cause and exigent circumstances. Nitcher also

complains there was not sufficient evidence to support his convictions. Again, our review of the record indicates sufficient evidence supported Nitcher's conviction on all three charges. convictions and sentences. Nitcher further asserts the district court used the sufficiency-of-theevidence standard rather than the weight-of-the-evidence standard when it overruled Nitcher's motion for new trial. Because the district court did use an incorrect standard, we reverse the district court's ruling denying Nitcher's motion for new trial and remand the case to the district court to rule on his motion for new trial under the correct weight-of-the-evidence standard. I. Background Facts and Proceedings. During the early morning hours of December 30, 2003, Cerro Gordo County deputy sheriff Ryan Carroll was patrolling an area known as Winnebago Heights when he detected the odor of ether in the air. He drove around the area, parked his car, and walked until he was able to determine that the odor was coming from a specific residence. Before entering the property, Carroll called his lieutenant, George Fountas, for assistance. We therefore affirm his

3 When Fountas arrived, he and Carroll approached the house and knocked on the east door. A person eventually came to the door, but did not open it. A male voice from within the residence asked who was there. Fountas informed the person they were from the sheriff's office. The officers then heard the person shuffle away from the door and heard noises that sounded like the person was running toward the garage. Fountas stayed at the door while Carroll walked around the garage toward the north and west side of the residence in case someone attempted to leave. Carroll also called for backup. At some point, the officers called the fire department due to the potential fire hazard. As Carroll walked toward the garage, he began to detect a very strong odor of anhydrous ammonia. He also smelled a moderately strong odor of ether as he walked toward the north side of the building. When he arrived at the northwest corner of the residence, he noticed the west side of the building had several windows and a doorway that were boarded up. While standing in the northwest corner, Carroll continued to hear the shuffling of a person or persons in the garage. After the backup officers arrived on the scene, Carroll and Fountas returned to the east door of the residence and knocked on the door again. Lloyd Pierce eventually opened the door. Pierce was wearing sleeping attire. The officers told Pierce they were at his door because of the chemical odors. Pierce told the officers he was the owner of the residence, he had been sleeping, and he was not aware of any chemical odors. Carroll observed that Pierce appeared to be very anxious. Fountas asked Pierce for consent to search the residence, which he gave and then withdrew. The officers led Pierce out of the residence.

4 Concerned for the safety of any other person inside the residence, the officers asked Pierce if there were others in the residence. Pierce told them his wife and children were inside. Because the officers felt the odor of ether in the entryway made it too dangerous to enter the residence, Carroll left the premises to retrieve air-purifying respirators so that they could enter the residence and look for anyone else inside. Fountas then yelled inside the residence for anybody there to come out and three individuals did so. The officers took Susan Payne, Larry Hull, and Nitcher into protective custody and placed them inside the entryway of the residence. When Carroll returned with the respirators, he and Fountas put their respirators on and entered the residence. They testified their purpose for entering the residence was to look for other people inside. They only looked in spaces big enough for a person to be in. When the officers opened the door to the garage, they immediately noticed a white cloud or haze and an odor of ether strong enough to overpower their respirators. They backed out of the garage for safety reasons and went outside the residence. They did not find any other persons in the residence. An officer placed the four individuals in his patrol car and transported them to the station. While transporting these individuals to the station, the officer noticed a smell of ether and anhydrous ammonia in the vehicle. Before being processed at the station, the fire department decontaminated these four individuals. While other officers secured the residence, Carroll and Cerro Gordo County chief deputy sheriff David Hepperly obtained a search warrant for the premises. Pursuant to the warrant, Carroll, Fountas, and other officers searched the exterior of the residence and property. Hepperly and Mason City police investigator David Tyler, who were state-certified for the

5 investigation of methamphetamine labs, searched the interior of the residence wearing self-contained breathing apparatuses and fireproof suits. They entered the garage and opened the doors to ventilate the area. Eventually the other officers entered the house to participate in the search of the residence. During the search of the garage area, officers found two glass pie plates containing red or pink and off-white powdery substances, a plastic container with an off-white powdery substance, and a white cloth shut under the lid of the container in the same area. The substance in the plastic container appeared moist. The room in which the officers found these items was separated from an attached shed to the garage by a sliding glass door that had been closed with a screw in the doorjamb. The room contained the odor of ether. Additionally, the officers observed moist offwhite and pink or red substances between cracks in the floorboards and on the doorsill to the room. The officers found other items as well, including a foam plate with pink and white substances, a coffee filter with residue, a plastic pitcher with red residue, and plastic tubing with residue. The

officers found no tax stamps for the substances in the plastic container or in the floorboards, which were later determined to contain

methamphetamine. In Pierce's bedroom, the officers found a bottle of Heet and a nearly empty one-gallon container of acetone, common ingredients in the manufacture of methamphetamine. In another bedroom, officers found a pair of blue jeans, a sweatshirt, and coffee filters. The clothes smelled of ether and a pocket in the jeans contained an identification card issued to Nitcher. Nitcher had been staying at the residence for a few days because

6 he had an argument with his girlfriend. The officers also found muriatic acid in a washroom. Some of the items found outside the residence included a small propane tank with an altered fitting and a severed garden hose. This setup would allow a person to draw the anhydrous ammonia that was in the tank to another container using the hose. There was also a burn pile, which contained rusted burnt cans of what the officers believed to be starting fluid and camp fuel. The starting fluid cans had holes punched in them in order to depressurize the ether. The officers sent several of the items seized during the search to the division of criminal investigation lab for testing. The analysis revealed all the items contained pseudoephedrine, most contained methamphetamine and CMP (a by-product created by the metal-ammonia reduction method of methamphetamine manufacture, the metal here likely being lithium), some contained lithium salt, and one contained triprolidine. The substance

found in the plastic container weighed 10.57 grams and contained methamphetamine, pseudoephedrine, and CMP. The substance found on one glass pie plate contained pseudoephedrine and the substance found on the other glass pie plate contained pseudoephedrine and triprolidine. The items tested were consistent with the various steps of the lithium-ammonia reduction method of methamphetamine manufacture. The residue on the pie plates was consistent with the preparation of the precursor; the substances found on the foam plate were consistent with solid waste from the solvent phase; the residue on the plastic tubing was consistent with the bubbling process; and the white cloth in the plastic container as well as the residue on the plastic pitcher were consistent with the filtering stage. Additionally, the acetone was consistent with the

7 process used to whiten the final product. The lab found Hull's fingerprint on both pie plates and Nitcher's fingerprint on one pie plate. The lab found no fingerprints on the plastic container. The analysts were unable to

determine when the substances were generated or when the prints were left on the objects. The State charged Hull, Nitcher, Payne, and Pierce with: (1)

conspiracy to manufacture a schedule II controlled substance in violation of Iowa Code sections 124.401(1) and 124.401(1)(b) (2003), a class "B" felony; (2) possession of products with the intent to manufacture a controlled substance in violation of Iowa Code section 124.401(4), a class "D" felony; and (3) failure to affix a controlled substance tax stamp in violation of Iowa Code sections 453B.1(3)(a) and 453B.12, a class "D" felony. Nitcher entered a plea of not guilty. Nitcher filed a motion to suppress the evidence seized by the officers claiming the issuance of the search warrant lacked probable cause and failed to identify the places searched by the officers. The court overruled the motion. Nitcher filed a renewed motion to suppress the evidence seized by the officers pursuant to the warrant, claiming the basis for the renewed motion did not become evident until he took the depositions of the State's witnesses. The court denied the renewed motion. Nitcher and Hull proceeded to a joint jury trial. Both defendants moved for directed verdicts of acquittal at the close of the State's case regarding count I as to conspiracy and counts II and III as to possession. The court overruled the motions. The jury found Nitcher and Hull guilty of aiding and abetting or conspiring to manufacture a controlled substance, possession of products with the intent to manufacture a controlled substance, and failure to affix a controlled substance tax stamp.

8 Hull filed a motion for new trial claiming the verdict was contrary to the law or evidence regarding possession, conspiracy, and intent to manufacture or deliver. Hull also filed a motion in arrest of judgment on the same day claiming there was insufficient evidence to support the judgment as to the link between the manufacture of a controlled substance and his presence in the house or his fingerprint on an object found in the house. He also claimed the court should have sustained his motion to suppress. At the sentencing hearing, Nitcher joined in the motions filed by Hull. The court overruled the motions. Nitcher appeals. II. Issues. On appeal we must consider: (1) whether Nitcher was denied effective assistance of original and substitute counsel and a fair trial as guaranteed by the United States Constitution and the Iowa Constitution; (2) whether the evidence was insufficient as a matter of law to convict Nitcher of aiding and abetting or conspiring to manufacture methamphetamine, possession of products with intent to manufacture methamphetamine, and failure to affix a drug tax stamp; and (3) whether the district court erred by applying an incorrect standard in overruling Nitcher's motion for new trial. III. Discussion and Analysis. A. Nitcher's claim of ineffective assistance of counsel. Nitcher claims original and substitute counsel did not render effective assistance as guaranteed by the United States Constitution and the Iowa Constitution. Claims involving the ineffective assistance of counsel have their basis in the Sixth Amendment of the United States Constitution and thus are examined de novo. State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005). The court then sentenced Nitcher.

9 Although these claims are typically preserved for postconviction relief actions, "we will address such claims on direct appeal when the record is sufficient to permit a ruling." Id. Nitcher claims his trial counsel was ineffective for failing to challenge the warrantless search of the residence. He argues there is no applicable exception to the warrant requirement permitting Carroll and Fountas to enter the residence without a warrant. He concludes that because the warrantless search cannot be justified, the evidence obtained pursuant to the search warrant is tainted and inadmissible. "In order for a defendant to succeed on a claim of ineffective assistance of counsel, the defendant must prove: (1) counsel failed to perform an essential duty and (2) prejudice resulted." Id. In order to satisfy the first element, " `counsel's performance is measured against the standard of a reasonably competent practitioner with the presumption that the attorney performed his duties in a competent manner.' " State v. Doggett, 687 N.W.2d 97, 100 (Iowa 2004) (citations omitted). Prejudice exists where " `there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.' " Wills, 696 N.W.2d at 22 (citations omitted). The Fourth Amendment assures "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. The Fourteenth

Amendment of the United States Constitution makes the Fourth Amendment binding on the states. State v. Freeman, 705 N.W.2d 293, 297 (Iowa 2005). In addition, article I, section 8 of the Iowa Constitution

guarantees "[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be

10 violated." Iowa Const. art. I,

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