                   IN THE COURT OF APPEALS OF IOWA

                                  No. 13-1062
                             Filed August 13, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RICARLESS L. LIPSEY,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       A defendant appeals from his judgment and sentence. AFFIRMED.



       Joel Walker of Law Offices of Joel Walker, of the Law Offices of Joel

Walker, Davenport, for appellant.

       Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, Thomas J. Ferguson, County Attorney, and Brad P. Walz, Assistant

County Attorney, for appellee.



       Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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VAITHESWARAN, P.J.

       Ricarless Lipsey appeals his judgment and sentence for possession of

marijuana with intent to distribute, as a second and habitual offender, and eluding

as an habitual offender.    He contends (1) there was insufficient evidence to

support the jury’s finding that he possessed marijuana with the intent to deliver;

(2) the district court abused its discretion in allowing the State to amend its trial

information on the first day of trial, and in denying his request for a continuance

in light of the amendment; (3) the district court erred in admitting hearsay

evidence; and (4) the district court did not follow the proper procedure in

enhancing his sentence.

   I. Sufficiency of the Evidence

       The jury was instructed that the State would have to prove the following

elements of possession of a controlled substance, marijuana, with intent to

deliver:

              1. On or about the 23rd day of September, 2012, the
       defendant knowingly possessed a controlled substance; Marijuana.
              2. The defendant knew that the substance he possessed
       was a controlled substance; Marijuana.
              3. The defendant possessed the substance with the intent to
       deliver.

       Lipsey does not dispute the first and second elements. Focusing on the

third element, he argues “[t]here was no evidence [he] sold the marijuana. There

were no eye witnesses to a drug transaction.            The cell phone evidence

referenced the defendant buying marijuana not selling it to a third party.” Our

review is for substantial evidence. State v. Bass, 349 N.W.2d 498, 500 (Iowa
                                           3


1984). The evidence does not include the cell phone records cited by Lipsey.

Therefore, we will not consider those records.

       From the duly admitted evidence, a reasonable juror could have found the

following facts.   Waterloo police officers chased a speeding vehicle until it

crashed. They found Lipsey inside. They also found four loose baggies of green

material and additional loose, clean baggies. Later testing confirmed the green

material was marijuana weighing between .5 and .6 grams per baggie.

       Police officers testified that, in their experience, people possessing

marijuana for personal use kept it on their person in a single “small plastic bag”

rather than in multiple baggies. In the view of law enforcement, the fact the filled

baggies contained equal amounts of the drug was also inconsistent with personal

use.   One of the officers opined that the packaging of the marijuana was

consistent with sale and distribution. See State v. Grant, 722 N.W.2d 645, 648

(Iowa 2006) (stating intent to deliver a controlled substance could be inferred

from the manner of packaging drugs).           As for the empty baggies, an officer

testified that he often looked for “clean, unused bags” in drug distribution cases

because sellers rather than buyers usually provided the packaging for the drugs.

       A reasonable juror could have credited the officers’ testimony over

Lipsey’s assertion that he purchased marijuana from a dealer, who placed the

drug in a balled up tissue because he did not have bags, forcing Lipsey to buy

baggies, which were only available in packs. See id. (stating opinion testimony

from law enforcement personnel experienced in the area of drug sales could be

offered to aid the jury in determining intent); see also State v. Arne, 579 N.W.2d

326, 328 (Iowa 1998) (stating “[t]he credibility of witnesses, in particular, is for the
                                           4


jury”). A reasonable juror also could have found the division of the marijuana into

four virtually equal increments was inconsistent with Lipsey’s testimony that he

“put [the marijuana] in bags” to keep it fresh and moist for later personal use.

Substantial evidence supports the jury’s finding of guilt on the possession-of-

marijuana-with-intent-to-deliver charge.

   II. Amendment of Trial Information/Motion to Continue

      On the day trial was to begin, the State moved to amend the trial

information to include a count of possession of marijuana, third offense as a

habitual offender, a lesser included offense of possession of marijuana with

intent to deliver. According to the prosecutor, his proposed amendment, which

was “already included in the minutes,” would charge Lipsey with a third offense

and habitual felon status enhancement if he were found guilty of the lesser

included offense. Lipsey’s attorney objected to the motion. He conceded the

proposed amendment did not “necessarily affect[] the factual issues that we are

dealing with here today,” but asserted “it may substantially affect the punishment

potentials and the dynamics of the way the [S]tate is proceeding forward with the

various charges.”   Counsel also requested a continuance.       The district court

granted the motion to amend and denied the motion for a continuance. Lipsey

contends both rulings were in error.

      Iowa Rule of Criminal Procedure 2.4(8) governs amendments to trial

informations, and provides in part:

          The court may, on motion of the state, either before or during
          the trial, order the indictment amended so as to correct errors or
          omissions in matters of form or substance. Amendment is not
          allowed if substantial rights of the defendant are prejudiced by
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          the amendment, or if a wholly new or different offense is
          charged.

Iowa R. Crim. P. 2.4(8)(a).     Lipsey focuses on the second part of the rule

prohibiting an amendment “if substantial rights of the defendant are prejudiced.” 1

We review a ruling on this aspect of the rule for errors of law. State v. Maghee,

573 N.W.2d 1, 5 (Iowa 1997).

       In State v. Brothern, 832 N.W.2d 187, 196 (Iowa 2013), the Iowa Supreme

Court held that “amending the information during trial to add an enhancement

can prejudice ‘substantial rights of the defendant’—if the defendant had no prior

notice of the State’s plan to amend and would have pled guilty had he or she

known of that plan before trial.”      Lipsey had prior notice of the proposed

amendment. First, he was only entitled to notice of the greater offense. See

Iowa R. Crim. P. 2.6(1) (stating “[w]here a public offense carries with it certain

lesser included offenses, the latter should not be charged, and it is sufficient to

charge that the accused committed the major offense”) and Iowa R. Crim. P.

2.22(3) (stating “[i]n all cases, the defendant may be found guilty of any offense

the commission of which is necessarily included in that with which the defendant

is charged”). Second, Lipsey knew of the State’s intent to pursue sentencing

enhancements because the original trial information charged Lipsey as “a second

offender and habitual offender” and the minutes of testimony identified a State

witness who would be available to prove up his prior convictions. We discern no

error in the district court’s decision to allow the amendment.



1
  Lipsey appears to concede that the amendment did not charge “a wholly new or
different offense.”
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      Because Lipsey was on notice of the amendment, the district court did not

abuse its discretion in denying Lipsey’s motion for continuance. See State v.

Schertz, 330 N.W.2d 1, 3 (Iowa 1983) (concluding ruling on motion was “largely a

matter of trial court discretion”); Steinkuehler v. State, 507 N.W.2d 716, 723

(Iowa Ct. App. 1993) (holding defendant not prejudiced by failure of counsel to

request continuance following amendment of trial information).

   III. Hearsay Evidence

      During trial, the prosecutor asserted he had a list of text messages

pursuant to a search warrant, obtained from a phone seized from Lipsey during

his arrest. The prosecutor stated he would not seek admission of the evidence in

the State’s case in chief, but might use the messages on cross-examination of

Lipsey, should he testify, or on rebuttal. Lipsey resisted, claiming surprise and

prejudice.

      As noted, Lipsey did indeed testify, and the prosecutor raised one of the

outgoing messages during cross-examination. Lipsey confirmed the phone was

his and he was the person who sent the message.

      On appeal, Lipsey asserts “[t]he [d]istrict [c]ourt erroneously admitted the

cell phone records without the proper foundation.” In fact, as noted, the district

court did not admit the cell phone records. Although the prosecutor asked about

one outgoing message, he did not offer the underlying record.        Additionally,

Lipsey himself established a foundation for that message. See Iowa R. Evid.

5.901(a) (noting foundational requirement “is satisfied by evidence sufficient to

support a finding that the matter in question is what its proponent claims”).

Finally, the outgoing message was not hearsay but an admission of a party
                                              7

opponent. See State v. Simpson, No. 10-1554, 2011 WL 3117888, at *2 n.2

(Iowa Ct. App. July 27, 2011).           For these reasons, we are unpersuaded by

Lipsey’s argument.

    IV.   Procedure for Imposing Sentencing Enhancement

          Lipsey contends the district court failed to comply with the proper

procedure to prove up his prior convictions.            He asserts “[t]he court had an

obligation to further inquire about the prior convictions.” The State counters that

Lipsey failed to preserve error because he did not object to the procedure.2 We

bypass this error preservation concern and proceed to the merits. See State v.

Taylor, 596 N.W.2d 55, 56 (Iowa 1999).

          In State v. Kukowski, 704 N.W.2d 687, 692 (Iowa 2005), the Iowa

Supreme Court stated that a defendant’s affirmations to prior convictions do “not

necessarily serve as an admission to support the imposition of an enhanced

penalty . . . . The court has a duty to conduct a further inquiry similar to the

colloquy required under rule 2.8(2), prior to sentencing to ensure that the

affirmation is voluntary and intelligent.” See Iowa R. Crim. P. 2.8(2)(b)(1)-(5)

(requiring court to discuss certain matters with defendant prior to accepting guilty

plea). While the district court did not conduct the full colloquy contemplated by

Kukowski, Lipsey cannot show prejudice because he had notice of the

convictions on which the State intended to rely, the minutes of testimony listed

the clerk of court as a witness and set forth the prior felony convictions, and

Lipsey testified to his prior convictions. See State v. McBride, 625 N.W.2d 372,

375 (Iowa Ct. App. 2001) (finding absence of prejudice based on disclosure in

2
    Lipsey does not raise the issue under an ineffective-assistance-of-counsel rubric.
                                          8

minutes of testimony and defendant’s admission); State v. Vesey, 482 N.W.2d

165, 168 (Iowa Ct. App. 1991) (finding no prejudice where “[t]he defendant

admitted to what the state was ready and able to prove. . . . The State had the

ability to prove all the facts necessary to show the defendant’s habitual offender

status”). Accordingly, this issue does not entitle Lipsey to reversal.

       We affirm Lipsey’s judgment and sentence.

       AFFIRMED.
