State of Iowa v. Kelly Richard Niemeyer

IN THE COURT OF APPEALS OF IOWA

No. 14-1597
Filed December 23, 2015

STATE OF IOWA,
Plaintiff-Appellee,

vs.

KELLY RICHARD NIEMEYER,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Andrea J.

Dryer, Judge.

A defendant appeals his drug and firearm convictions following a bench

trial on stipulated evidence. AFFIRMED.

Susan R. Stockdale, Windsor Heights, for appellant.

Thomas J. Miller, Attorney General, and Kevin Cmelik and Sharon K. Hall,

Assistant Attorneys General, for appellee.

Considered by Potterfield, P.J., Tabor, J., and Miller, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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TABOR, Judge.

After the district court denied his motion to suppress, Kelly Niemeyer

waived his right to a jury trial and stipulated to the minutes of evidence. The

district court found him guilty of two marijuana offenses and being a felon in

possession of a firearm. On appeal Niemeyer claims his trial counsel was

ineffective for failing to object to the waiver colloquy. He also challenges the

intent-to-deliver element of his marijuana possession offense.

Because the colloquy was adequate under existing law, we hold

Niemeyer’s counsel had no duty to object and was not ineffective. On the

sufficiency challenge, we find substantial stipulated evidence to support

Niemeyer’s conviction for possession with intent to deliver.

I. Background Facts and Proceedings

Black Hawk County law enforcement suspected Niemeyer was involved in

the marijuana trade, and on January 8, 2014, deputies searched trash left

curbside at his Waterloo residence. The search unearthed, among other things,

marijuana stems, potting soil, and mail addressed to Niemeyer at that residence.

To follow up, deputies obtained a search warrant for the house where Niemeyer

lived with his girlfriend, Emily Clark, and their young daughter.

Upon arriving at the house, Deputy Matthew Harris read the warrant to

Clark. Clark initially denied knowing about Niemeyer’s marijuana operation.

Clark eventually admitted she was aware of “trim”—that is, cut-up marijuana

plants in the basement, but added Niemeyer did not allow her access to the

basement.
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In the basement, investigators found a marijuana growing operation,

including equipment, marijuana plants and seeds, bottles of liquid fertilizer,

several 1000-watt ballasts, heat lamps and reflectors, an electric blower with duct

work, and numerous plant starter trays. The deputies also found a loaded Smith

and Wesson AR-15 rifle and boxes of ammunition next to the marijuana plants.

After walking upstairs from the basement, Deputy Harris encountered

Niemeyer. The deputy read him the warrant and his Miranda rights. Niemeyer

denied selling marijuana and told the deputy the grow operation in the basement

belonged to someone else. When asked about the loaded rifle, Niemeyer said

he was “holding on to it” for a friend but acknowledged doing so was a “bad idea”

because he was a felon. When asked about Clark’s involvement, “Niemeyer

stated that everything related to illegal narcotics or weapons belonged to him and

that she had nothing to do with it.”

In the kitchen, investigators found a glass marijuana pipe on the counter

along the south wall. In the same area, they found about 75 empty baggies, a

clear plastic sandwich bag containing marijuana, a glass jar containing marijuana

residue, and a vacuum sealer for plastic bags. They also located a digital scale

and a drug ledger in the lower cabinet along that same wall. In the dining room,

they found a marijuana grinder on the table, $208 in a desk drawer, and a glass

jar containing marijuana behind a fish tank. Niemeyer also had $304 in cash in

his wallet.

Based on what investigators found during the search of Niemeyer’s house,

the State filed a trial information on January 17, 2014, charging him with three
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counts: (I) manufacturing marijuana, in violation of Iowa Code sections

124.401(1)(d), 124.401A, and 124.401(1)(e) (2013); (II) possession of marijuana

with the intent to deliver, in violation of Iowa Code sections 124.401(1)(d),

124.401A, and 124.401(1)(e); and (III) possession of a firearm by a felon, in

violation of Iowa Code section 724.26.

In early spring of 2014, Niemeyer filed an unsuccessful motion to

suppress the evidence seized at his home. On May 9, 2014, Niemeyer filed a

signed waiver of his right to a jury trial. The written waiver acknowledged his

attorney had advised him of his “statutory and constitutional rights” to a jury trial

and the “ramifications” of waiving those rights. At a hearing on May 22, 2014, the

court confirmed Niemeyer intended to waive his right to a jury and proceed to a

bench trial on the stipulated minutes of testimony.

On August 5, 2014, the district court found Niemeyer guilty on all three

counts.1 The court sentenced him to indeterminate prison terms of ten years on

counts I and II and five years on count III; all three sentences were to run

concurrently. Niemeyer now appeals.

II. Scope and Standards of Review

We review ineffective-assistance-of-counsel claims de novo. State v.

McNeal, 867 N.W.2d 91, 99 (Iowa 2015).

We review challenges to the sufficiency of the evidence for correction of

errors at law. State v. Robinson, 859 N.W.2d 464, 467 (Iowa 2015). Our scope

of review from a criminal conviction is the same whether the factfinder is the

1
The court determined the State had not proven the enhancement for manufacturing or
distribution within one-thousand feet of a school under Iowa Code section 124.401A.
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court or a jury. State v. LaPointe, 418 N.W.2d 49, 51 (Iowa 1988). In reviewing

the finding of guilt, we view the evidence in a light most favorable to the State.

Id. We are bound by the court’s finding of guilt unless it is not supported by

substantial evidence. Id. Evidence is substantial if it would convince a rational

trier of fact the defendant is guilty beyond a reasonable doubt. Robinson, 859

N.W.2d at 467.

III. Analysis

A. Ineffective Assistance of Counsel

Niemeyer’s first claim involves the performance of his trial counsel. He

alleges his attorney was constitutionally remiss in not challenging the adequacy

of the court’s colloquy to ensure his jury-trial waiver was knowing and voluntary.

To succeed on his claim, Niemeyer must show (1) counsel failed to perform an

essential duty and (2) prejudice resulted. See Strickland v. Washington, 466

U.S. 668, 687 (1984). Under the duty prong, we measure counsel’s performance

against the standard of a reasonably competent practitioner, presuming the

attorney performed his duties competently. See State v. Clay, 824 N.W.2d 488,

495 (2012). To prove prejudice, Niemeyer must show “a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” See Strickland, 466 U.S. at 694.

Niemeyer asked our supreme court to retain this case, asserting the

appeal raised

an issue of first impression—whether a defendant agreeing to a trial
on the minutes should be questioned regarding his waiver of his
rights to confront and cross examine witnesses, to testify or not
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testify on his behalf, and to call his own witnesses through the use
of subpoenas, if necessary.

But the supreme court transferred the case to us. And we must follow its

previous dictates. The supreme court has held “a bench trial on a stipulated

factual record is not the same as a guilty plea proceeding, and due process does

not require the court to undertake a guilty plea colloquy prior to accepting a

stipulated factual record.” State v. Sayre, 566 N.W.2d 193, 195 (Iowa 1997)

(citing State v. Everett, 372 N.W.2d 235, 236 (Iowa 1985)).

If a defendant is stipulating to a bench trial on the minutes, as opposed to

pleading guilty, then the district court must complete three tasks: (1) verify the

defendant has waived his right to a jury trial in accord with Iowa Rule of Criminal

Procedure 2.17(1); (2) confirm the extent of the factual record to which the

parties are stipulating; and (3) “find the facts specially and on the record,

separately stating its conclusion of law, and rendering an appropriate verdict” as

required by rule 2.17(2). Id. at 196.

The court satisfied all three requirements here. First, the court verified

Niemeyer’s desire to waive the right to a jury trial, engaging in the colloquy

outlined in State v. Liddell, 672 N.W.2d 805, 813-14 (Iowa 2003) and State v.

Feregrino, 756 N.W.2d 700, 705 (Iowa 2008). Second, the court confirmed the

parties were submitting the matter on the original and amended minutes of

testimony. Niemeyer told the court he understood it was going to “make a

decision about whether [he was] guilty or not guilty of each count in the case

based upon written materials that are in the court file rather than on witness
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testimony.” And third, the district court issued detailed findings of fact and

conclusions of law.

Niemeyer’s counsel had no obligation to raise a meritless claim

concerning the adequacy of his waiver of jury trial and the voluntariness of his

agreement to a stipulated trial on the minutes. See State v. Saxton, No. 14-

0124, 2014 WL 7343522, at *3 (Iowa Ct. App. Dec. 24, 2014). Accordingly, we

reject Niemeyer’s claim of ineffective assistance of counsel.

B. Sufficiency

As a second issue, Niemeyer contests the sufficiency of the State’s proof

that he possessed the marijuana with intent to deliver. Specifically, he

challenges the evidence establishing intent.

“Because it is difficult to prove intent by direct evidence, proof of intent

usually consists of circumstantial evidence and the inferences that can be drawn

from that evidence.” State v. Grant, 722 N.W.2d 645, 647-48 (Iowa 2006).

Police with experience in drug enforcement may provide evidence to assist the

fact finder. Id. at 648. Intent to deliver also may be inferred from “the manner in

which the drugs are packed, large amounts of unexplained cash, and the quantity

of drugs possessed.” Id.

The district court decided the volume of baggies—found in close proximity

to a vacuum sealer and digital scale—was consistent with Niemeyer’s “intent to

weigh, divide, package, and preserve marijuana for sale.” The court also pointed

to the cash in defendant’s wallet and drug ledgers as evidence showing his intent

to deliver.
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On appeal, Niemeyer argues the stipulated trial record holds no support

for the court’s reference to drug ledgers. We disagree. The Waterloo Police

Department’s Property Tag Summary Report, which was incorporated into the

minutes of evidence, listed drug ledgers as being found with mail addressed to

Niemeyer in a kitchen cabinet. When viewed in the light most favorable to the

State, the totality of the evidence found in Niemeyer’s house indicated more than

marijuana possession for personal use. The scope of the grow operation—

coupled with the packaging equipment, ledgers, and cash—all illuminated

Niemeyer’s intent to deliver. See State v. Adams, 554 N.W.2d 686, 692 (Iowa

1996) (noting relatively large amount of cash carried by twenty-one-year-old

defendant). We decline to disturb the conviction for possession with intent to

deliver.

AFFIRMED.