                      IN THE COURT OF APPEALS OF IOWA

                              No. 3-1193 / 12-1168
                               Filed April 16, 2014


STATE OF IOWA,
     Plaintiff-Appellee,
vs.

RAVIN CORNELIUS MILLER,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Scott County, Mark J. Smith

(attorney-withdrawal motion), John D. Telleen (defense motion to extend

discovery), Bobbi M. Alpers (attorney-withdrawal motion), Gary D. McKenrick

(jury waiver, continuance), and Nancy S. Tabor (motions to dismiss and suppress

and trial), Judges.



       Ravin Miller appeals his conviction for possession of controlled substance

(marijuana) with intent to deliver as a habitual offender. AFFIRMED.



       Jack E. Dusthimer, Davenport, for appellant.

       Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, Michael J. Walton, County Attorney, and Kelly G. Cunningham,

Assistant County Attorney, for appellee.



       Considered by Potterfield, P.J., and Doyle and Bower, JJ. Tabor, J. takes

no part.
                                             2



BOWER, J.

       Ravin Miller appeals his conviction, following a bench trial, for possession

of a controlled substance (marijuana) with intent to deliver as a habitual offender.

See Iowa Code §§ 124.401(1)(d), .204(4)(m) (marijuana), .411 (subsequent

offenses), 902.8 (minimum sentence-habitual) (2011). Miller claims the district

court erred in denying his motion to dismiss based on a violation of his right to be

brought to trial within one year of his arraignment. See Iowa R. of Crim. P.

2.33(2)(c).1    Before the trial information was filed, Miller filed a “written

arraignment and plea of not guilty” specifying the one-year-from-arraignment

period “will be computed from the date of filing of the Trial Information.” Miller

acquiesced to this computation; his trial was held within one year of the filing of

the trial information, and the court did not abuse its discretion in denying his

motion to dismiss.

       Miller also claims the evidence is insufficient to support the “intent to

deliver” element of his conviction.2        Reviewing the record in the light most

favorable to the State, we conclude sufficient evidence supports his conviction.

Accordingly, we affirm.




1
  Rule 2.33(2)(c) states: “All criminal cases must be brought to trial within one year after
the defendant’s initial arraignment . . . unless an extension is granted by the court, upon
a showing of good cause.”
2
  Miller also asserts a violation of the Iowa Constitution. Trial counsel did not claim any
such violation; therefore, we will not address this issue for the first time on appeal. See
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). Further, the record does not
allow us to address Miller’s alternative ineffective-assistance-of-counsel claim on this
issue.
                                         3



I. Background Facts and Proceedings

      A. Traffic Stop. On January 23, 2011, Officer McNeill was on routine

patrol in Davenport. He works second shift in high crime areas and makes three

to four marijuana arrests per week. McNeill observed Miller driving a car with a

broken taillight. After following the vehicle for several blocks in a marked police

car, the officer was able to pull in behind Miller’s car and activate the emergency

lights. Miller did not stop, so the officer turned on the siren. Eventually Miller

pulled over.   McNeill approached and observed Miller’s pants and belt were

undone and pulled part way down. Upon questioning, Miller stated the car was

not his, and he was driving to an auto parts store to repair the taillight. Miller

provided an insurance card for a different vehicle.

      When McNeill returned to his patrol car and called in the license

plate/driver information, he learned Miller had several prior convictions for

controlled substances. McNeill requested a canine officer. The district court

found the video of the stop shows, immediately after McNeill left the driver’s door

to check the license, “a rocking motion consistent with a person sitting in the

driver’s seat pulling up his pants or making other movements while remaining

seated.”

      By the time McNeill returned to the vehicle, Miller had pulled his pants up

and had fastened them. McNeill asked Miller to get out of the car, and Miller

exited while holding a cell phone in each hand.       Miller consented to a search of

the vehicle but refused a search of his person. McNeill’s subsequent pat down

revealed money in Miller’s pocket. McNeill handcuffed Miller.
                                           4



       A female arrived at the scene and asked if she could take the car. McNeill

declined her request and asked her to leave. Miller identified her as a friend who

lived nearby. Miller told McNeill he had been planning to stop by her house.

       Officer Jensen arrived with his canine partner, and the dog alerted to the

driver’s side of Miller’s car. Jensen then searched the inside of the car and found

a small plastic bag with a corner torn off and a drill chuck with melted plastic on

its end. Meanwhile, McNeill was questioning Miller, who stated he did not have a

job and the money from his pocket was “the luck of the draw.” Jensen confirmed

Miller had been read his Miranda rights and questioned him about the baggie and

drill chuck. Miller stated the drill chuck could be a pipe, but neither item belonged

to him.

       Based on those facts and his experience with people hiding narcotics in

their pants, McNeill suspected Miller was involved with narcotics.           McNeil

decided to arrest Miller for the taillight violation.   When McNeill later complied

with Miller’s request to loosen the handcuffs, McNeill also smelled marijuana. He

then shook Miller’s pants, and a plastic bag holding a leafy green substance fell

on the ground.     This baggie contained another baggie holding a leafy green

substance.     Based on his training, McNeill believed the substance to be

marijuana.

       B. Criminal Proceedings.         Miller’s arraignment was originally set for

February 24. On February 14, 2011, before the trial information was filed, Miller

filed a “written arraignment and plea of not guilty” identifying Eric Puryear as his

attorney and stating Miller “voluntarily waive[d]” his “right to arraignment in open
                                           5



court” and his “right to have the court read” the trial information, “choosing

instead to sign this Written Arraignment and plea of Not Guilty. I understand that

times for further proceedings which are computed from the date of arraignment

will be computed from the date of filing of the Trial Information.” Miller signed

under oath and under penalty of perjury. Miller waived his right to a 90-day

speedy trial in the written arraignment.

       Miller’s February 24 arraignment was continued to March 3, 2011. The

State filed a trial information on March 3—Count I, Possession with intent to

deliver a schedule I controlled substance-marijuana (class “D” felony).         The

district court’s March 3 “Arraignment Order” set a pretrial conference on March

25. The court’s March 25 order stated Miller and counsel Puryear appeared and

an August 8, 2011, trial date “is confirmed.”

       On August 3, 2011, five days before trial, Miller requested new counsel,

and his request was granted. On August 12 the court appointed attorney Harlan

Giese to represent Miller and set another pretrial conference for October 14.

       On August 29, 2011, a hearing was held on attorney Giese’s application

for court approval to conduct depositions and extend time limits for motions, and

the State’s objections. In support of his application, Giese stated: “As the court is

aware, times for doing discovery and filing motions are related to the arraignment

date in the case” and Miller “was arraigned on this particular case on March 3.”

Thus, the times for discovery and to file motions had expired. The court granted

the application, “given the fact Mr. Giese has just been retained recently and

hasn’t had an opportunity to review everything.”
                                           6



       In the October 14, 2011 pretrial conference order, the court stated the

parties anticipated a three-day jury trial, and it set trial for February 13, 2012.

       On January 27, 2012, attorney Giese filed a motion to suppress evidence;

the court set hearing on the motion for February 8. On January 31, thirteen days

before trial, Miller again requested new counsel, and the court set a hearing for

February 8.

       At the February 8, 2012 hearing on Miller’s requests—held just five days

before trial—the State objected to Giese being allowed to withdraw, noting Miller

recently had Giese removed from another criminal case that was close to a one-

year deadline, and Miller was now on his fourth attorney in that case. The State

argued Miller’s request for a new attorney was being made so he could argue on

appeal that “the State didn’t take me to trial within a year.”

       Giese responded he did not think it would be appropriate for him to

represent Miller in this case over Miller’s objections when there is “a finding on

the record in a different case that there is a problem between Mr. Miller and

myself.” The following exchange occurred:

               [THE COURT]: And, Mr. Miller is there anything you wish to
       add with regard to your relationship with Mr. Giese presently or in
       the past?
               [MR. MILLER]: I want a fair trial and if I [think] counsel wasn’t
       right for me, then I should have the counsel that I wanted . . . .
       [T]hey [are] trying to get me on some serious time . . . and in that
       case I should have just kept the first one . . . I don’t even know his
       name . . . . I just want the right counsel and I will go forward.
               [THE COURT]: With regard to Mr. Giese, has he
       represented you before in matters?
               [MR. MILLER]: He represented me before and [I was found]
       guilty, but it got reversed on appeal . . . so that’s why I just feel I
       want to get the right counsel and do the right thing.
               ....
                                             7



                  [MR. MILLER] And for the record, I never asked for any
          continuance, I just asked for the proper counsel. After I talk with
          my [new] lawyer, if he says he wants to go by [March] 3rd, that’s
          fine, or if he say he wants to go by tomorrow. I want to go to trial; I
          just want the proper counsel. That’s all I’m saying.
                  [THE COURT]: The court will note that your dispute is not
          with going to trial by the end of one year as the . . . rules would tell
          us . . . but your concern is that you wish to have your choice of
          counsel representing you.
                  [MR. MILLER]: Right.

          The court allowed attorney Giese to withdraw and, for the short term,

appointed attorney DeLange as Miller’s counsel. The court advised Miller to

“retain any private counsel that you expect to have right away.” The court set a

pretrial conference for February 10, stating: “We will give directions to Mr.

DeLange to appear . . . . And [Mr. Miller] if you have Mr. Scovil who is going to

represent you . . . then he needs to be there too.”

          On February 13, the court set a hearing on Miller’s previously-filed motion

to suppress for February 15. The State filed a resistance. On February 15,

Miller appeared for the suppression hearing with his new attorney, Douglas

Scovil.     After Scovil learned of a video of the traffic stop, he withdrew the

suppression motion without prejudice so he could review the video. The court

ordered, if defense counsel believed an actual basis existed for a motion to

suppress after viewing the video, counsel would be allowed to refile the motion.

          On February 24, Miller waived his right to a jury trial. Also on February 24,

the district court conducted a colloquy, accepted Miller’s waiver, and rescheduled

trial for Monday, February 27.

          On February 27, the morning of trial, Miller reaffirmed his decision to

waive a jury trial. The court asked if there were any preliminary matters, and
                                          8



defense counsel Scovil stated he had two motions to file with the court. The first

motion sought a dismissal and claimed, under the rules of criminal procedure, the

starting date to compute the one-year-speedy-trial deadline for Miller’s trial was

February 14, 2011—the date Miller filed his written arraignment.

       Iowa Rule of Criminal Procedure 2.8(1) “Conduct of arraignment”

provides: “Unless otherwise ordered by the court, a defendant represented by an

attorney may waive the formal arraignment contemplated by this rule and enter a

plea of not guilty by executing and filing a written arraignment that substantially

complies with the form that accompanies these rules.” Iowa Rule of Criminal

Procedure Rule 2.11(4) states: “If a written arraignment under 2.8(1) is used, the

date of arraignment is the date the written arraignment is filed.”

       The State resisted, noting at 11:00 a.m. on March 3, the district court

conducted Miller’s arraignment in a courtroom with the State present.3 The State

claimed the rule allowing defense attorneys to file a written arraignment when

they had not received the trial information is only a “means of convenience for

not requiring the defendant to come into open court and make that personal

appearance.” The State also noted the issues at an arraignment are based on

the defendant’s review of the trial information, and without the trial information,

the defendant cannot know “what those charges were [in order] to be advised of

what penalties [are faced].”     Finally, the State argued it had always been




3
 The court’s arraignment order states: “Defendant appears for arraignment represented
by: Eric David Puryear.” Therefore, it appears Miller appeared for the arraignment on
March 3. We note the original file in this case is missing.
                                            9



prepared to proceed and each continuance “was occasioned by Mr. Miller”

complaining about his attorneys.

          Defense counsel responded by quoting rule 2.8(1) and by pointing out the

applicable form is rule 2.37-Form 6. Counsel claimed the italicized language in

Form 6 below and rule 2.33(c) required Miller’s case to be dismissed. Form 6

states:

                 4.    I have been advised by the above attorney and
          understand that I have a right to arraignment in open court, and I
          hereby voluntarily waive that right, choosing instead to sign this
          written arraignment and plea of not guilty. I understand that times
          for further proceedings which are computed from the date of
          arraignment will be computed from the date of filing this written
          arraignment and plea of not guilty.
                 5. I have received a copy of the . . . trial information4 which
          charges me with the crime(s) of __________________in violation
          of Iowa Code section(s) ___________ (insert year). I have read it
          and, and I have familiarized myself with its contents.

          In response, the State quoted paragraphs 4 and 5 of the written

arraignment Miller filed and claimed: (1) under Miller’s own express language,

dates “computed from the date of arraignment will be computed from the date of

filing of the trial information,” or March 3; and (2) Miller’s paragraph 5 language

recognizes there will be an arraignment in the future, and the arraignment did

occur on March 3.5



4
  We note paragraph 5 in Form 6 presumes the defendant had already received a copy
of the trial information. We also note Iowa Rule of Criminal Procedure 2.37 initially
states: “The following forms are illustrative and not mandatory, but any particular
instrument shall substantially comply with the form illustrated.”
5
  Paragraphs 4 and 5 of Miller’s written arraignment stated:
                4. Attorney Eric D. Puryear has advised me and I understand I
        have a right to arraignment in open court and to have the Court read for
        and to me the Trial Information and Minutes of Evidence, and I hereby
        voluntarily waive those rights, choosing instead to sign this Written
                                            10



       The court orally ruled: “[P]ursuant to the written arraignment form

voluntarily signed and filed by [Miller] that he agreed to have the computation

from the date of the filing of the trial information, which was March 3,” the motion

is denied.

       Defense counsel then claimed Miller’s [first] prior counsel, Attorney

Puryear, did not have “the ability to waive rights or to change the laws that exist

under the Rules of Criminal Procedure” and Miller is not bound by prior counsel’s

incorrect statement of the law that the time is run from the filing of the trial

information. The court rejected this claim and orally ruled: “Well, he voluntarily

signed it, and I find that that’s good cause to extend it to March 3 for just the trial

information date, so we have until March 3 to get this heard.”6

       Defense counsel next filed and addressed a new motion to suppress

evidence—the marijuana and the money. The State, having resisted Miller’s

earlier motion to suppress, argued this motion should be heard in conjunction




       Arraignment and plea of Not Guilty. I understand that times for further
       proceedings which are computed from the date of arraignment will be
       computed from the date of filing of the Trial Information.
               5. . . . [I]f the Trial Information has not yet been received; I do
       understand that upon my attorney’s receipt . . . it will then be available to
       me. I waive my right to read the Trial Information or have it read to me at
       the time of my arraignment.
6
  The court’s written ruling, issued the next day, stated:
       The Motion to Dismiss was denied for reasons on the record finding that
       the date to compute the year deadline was the date that the arraignment
       was held, the order was signed, and the trial information filed, despite the
       filing of the written arraignment two weeks earlier. The defendant
       voluntarily and knowingly waived his right to have the date of filing the
       written arraignment used to compute the timelines by his voluntary
       signature on his written arraignment form. The Court found good cause
       to accept that waiver and use the date the Trial Information was filed and
       the arraignment was actually held with the State appearing before the
       court.
                                        11



with the trial due to the March 3 deadline fast approaching. Counsel responded

Miller’s suppression motion should be heard separately in order to not taint the

trial record. The court ruled the motion to suppress would be heard separately

and rescheduled the bench trial for February 29, 2012.         Therefore, only the

suppression hearing commenced. Officers McNeill and Jenson testified. The

next day, February 28, the court denied Miller’s motion as to the marijuana

evidence and granted his motion concerning the money seized.

       Trial commenced on February 29, 2012. The Stated entered the video of

the traffic stop into evidence. In addition to the testimony of the officers present

at the stop, an officer experienced in investigating drug transactions testified. At

the close of the State’s evidence Miller moved for judgment of acquittal, claiming

the evidence was insufficient to show possession with intent to deliver. The court

took the motion under advisement. Miller did not testify but stipulated to his

identity in the cases showing habitual offender status.7

       The court’s March 2, 2012 ruling denied Miller’s motion for judgment of

acquittal and found him guilty as charged. At Miller’s sentencing hearing, the

court denied his motion for a new trial. The court sentenced Miller to serve, as a

habitual offender, a fifteen-year prison sentence with a three-year mandatory

minimum. The court did not impose a fine but did assess surcharges. This

appeal followed.




7
 Miller acknowledged his convictions in January 2007 and June 2002 for possession of
a controlled substance, marijuana, with intent to deliver.
                                             12



II. Scope and Standards of Review

       We review the district court’s ruling on a “motion to dismiss based on

speedy-trial grounds for an abuse of discretion.” State v. Winters, 690 N.W.2d

903, 907 (Iowa 2005). But when speedy-trial grounds are at issue, the discretion

we give to the district court narrows. Id.

       We review Miller’s challenge to the sufficiency of the evidence for the

correction of errors at law. State v. Hansen, 750 N.W.2d 111, 112 (Iowa 2008).

“The district court’s findings of guilt are binding on appeal if 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.” Id. We “view the

evidence in the light most favorable to the State, including legitimate inferences

and presumptions that may fairly and reasonably be deduced from the record.”

State v. Rohm, 609 N.W.2d 504, 509 (Iowa 2000).

III. Trial within One Year of Arraignment

       Miller claims the district court erred in overruling his motion to dismiss

based on the State’s alleged failure to bring his case to trial within one year as

required by rule 2.33(2)(c) (stating “within one year after the defendant’s initial

arraignment”). On appeal, the parties dispute what constitutes the triggering date

for the one-year period.8       If the initial arraignment occurred on February 14,



8
  Miller notes “the ‘initial’ arraignment” was set for February 24, but “it appears the State
obtained an ex parte Order continuing the Arraignment” to March 3. In this appeal he
first claims the district court should have used February 24 as the initial arraignment
date. Miller cites no authority for his proposition the district court’s action of continuing
the first-scheduled arraignment to March 3 somehow invalidates March 3 from being the
“initial arraignment” date. Further, this argument was not made to the district court, and
we will not address it for the first time on appeal. Meier, 641 N.W.2d at 537.
                                         13



2011, then the February 29, 2012 trial started outside the one-year period. If the

initial arraignment occurred on March 3, 2011, Miller’s trial met the speedy-trial

requirement.

       Miller claims the “initial arraignment” occurred on the date he filed his

written arraignment and plea—February 14, 2011. In support, he cites us to the

“unambiguous ‘triggering’ language” in paragraph 4 of rule 2.37-Form 6. We are

not persuaded because Miller’s written arraignment did not utilize the language of

Form 6, paragraph 4.

       Second, Miller claims interpreting the term “initial arraignment” to mean

“the actual filing of the Trial Information” on March 3 would be an “absurd

interpretation based on the facts of this case.”

       The State responds the “district court scheduled arraignment for March 3,

2011. It was on this date that the trial information was filed, the charges against

the defendant were stated, and the court accepted the defendant’s plea.” See

Iowa R. Crim. P. 2.8(1) (providing the defendant at arraignment “shall be given a

copy of the indictment or information before being called upon to plead”). The

State claims February 14 is not the arraignment date because in State v.

Hempton, our supreme court interpreted initial arraignment for the purposes of

the speedy-trial rule to be the proceeding in which a plea is entered:

              We are thus required to decide what the term “initial
       arrangement” means . . . . It is obvious [the] defendant’s
       appearance [before Illinois and Iowa magistrates did not constitute]
       an arraignment . . . . Those proceedings were not taken to obtain a
       plea to the charges.
              ....
              In [State v. Magnuson, 308 N.W.2d 83 (Iowa 1981)] we
       assumed that the one-year period . . . is triggered by the district
                                          14



       court arraignment which occurs after the filing of an indictment or
       information.
              [W]e believe this interpretation is reasonable. A case can be
       brought to trial only when it is in court. Even when a prosecution
       has been initiated, the case is subject to trial only after arraignment
       and plea . . . . It is therefore logical that the one-year period should
       start with arraignment.

310 N.W.2d 206, 208 (Iowa 1981); see State v. Dickerson, 313 N.W.2d 526, 529

(Iowa 1981) (“Initial arraignment means the arraignment in district court after

indictment or filing of a trial information.”); Wright v. Denato, 178 N.W.2d 339,

341 (Iowa 1970) (“Arraignment is a procedural right accorded defendants only

after indictment (or the filing of a county attorney’s information).”).

       The State additionally points to paragraph 5 of Miller’s written arraignment,

stating he waives “my right to read the Trial Information or have it read to me at

the time of my arraignment.” The State asserts because the trial information

“had not yet been filed, Miller could not have been advised of all the rights and

matters specified” in rule 2.8, and therefore, his “written arraignment cannot be

used” as the initial arraignment and triggering date “because it does not satisfy

the full purposes of an arraignment.” The State concludes, under rule 2.8(1) and

Hempton, Miller’s right to a speedy trial within one year of arraignment is

calculated from March 3, when the trial information became available to him and

when the court’s arraignment order was filed. As such, there was no speedy-trial

violation.

       But, based on the specific circumstances in this case, we need not resolve

the issue above. Even if we assume February 14 is the initial arraignment date,

the district court did not abuse its discretion. As the district court found, Miller
                                           15



knowingly and voluntarily signed and filed the written arraignment and plea.

Miller thereby waived the use of February 14 as the initial arraignment date

because his written arraignment expressly provided: “I understand that times for

further proceedings which are computed from the date of arraignment will be

computed from the date of filing of the Trial Information.”          See Winters, 690

N.W.2d at 908 (ruling trial may proceed outside the speedy-trial time period when

the State proves the defendant waived speedy trial); State v. Miller, 637 N.W.2d

201, 204 (Iowa 2001) (holding dismissal is required “unless the defendant has

waived speedy trial, the delay is attributable to the defendant, or other ‘good

cause’ exists for the delay”); see also State v. Miller, 311 N.W.2d 81, 84 (Iowa

1981) (“A defendant who elects to forgo his speedy trial right by . . . acquiescing

in delay should not profit from the State’s failure to obtain an extension of time

period for trial.”).

        The trial information was filed March 3, and in his written arraignment

Miller agreed to make March 3 the arraignment date for purposes of the one-year

speedy-trial calculation.9   In other words, Miller acquiesced to the date from

which the speedy-trial determination would be calculated, and his filing informed

the State and the district court that he would not count the days after his written

arraignment was filed up until the day the trial information was filed.              We

conclude the trial court did not abuse its discretion in denying Miller’s motion to




9
  We find no merit to Miller’s claim his “written arraignment” form “matched the language
found in the rules,” or his claim that nowhere did he “agree to have the computation from
the date of the filing of the trial information.”
                                         16



dismiss. See State v. LeFlore, 308 N.W.2d 39, 41 (Iowa 1981) (finding defense

counsel may properly waive a defendant’s right to a speedy trial).

IV. Sufficiency of the Evidence

       Miller challenges the sufficiency of the evidence supporting his conviction.

The State had to prove Miller knowingly possessed marijuana, he knew the

substance he possessed was marijuana, and he possessed the substance with

the specific intent to deliver a controlled substance.             See Iowa Code

§ 124.401(1).

       On appeal, Miller acknowledges, in the light most favorable to the State:

(1) he did not immediately pull over; (2) he attempted to conceal the marijuana

inside his pants; (3) he was driving a vehicle arguably registered to another

person; (4) there was more than one cell phone in the vehicle; (5) two baggies

were used in packaging the marijuana; and (6) “some of the marijuana may

appear to have recently [been] taken from a compressed ‘brick.’”

       But Miller claims the State’s expert, Sargent Smull, failed to specifically

identify the above-listed factors as proof of “intent to deliver” or “delivery.” Also,

Miller points out Smull testified an ultimate user could purchase up to an ounce,

larger amounts sold to a user can be in a full sandwich baggy, and placing drugs

in the crotch area is common for people hiding drugs. Miller recognizes “not

having paraphernalia may be indicative of distribution” but claims “it was opined

the drill bit found in the vehicle could be used as a pipe” and testimony

established marijuana can be used by methods other than smoking.                    In

conclusion, Miller asserts these facts, whether considered “individually or in toto,”
                                       17



lead only to the level of proof and conclusion that he was “a simple drug ‘user.’”

See State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992) (ruling evidence that

“merely raises suspicion, speculation, or conjecture is insufficient” to support a

conviction).

       The element of intent is seldom susceptible of proof by direct evidence.

State v. Evans, 671 N.W.2d 720, 724–25 (Iowa 2003); see State v. Radeke, 444

N.W.2d 476, 479 (Iowa 1989) (generally a defendant will “not admit later to

having the intention which the crime requires”). Intent may be inferred by the

surrounding circumstances. State v. Taylor, 689 N.W.2d 116, 132 (Iowa 2004).

“[A]n actor will ordinarily be viewed as intending the natural and probable

consequences that usually follow from his or her voluntary act.”        Id.   “The

requirement of proof beyond a reasonable doubt is satisfied if it is more likely

than not that the inference of intent is true.” State v. Finnel, 515 N.W.2d 41, 42

(Iowa 1994).

       Miller’s argument that the amount of marijuana he possessed was equally

consistent with possession for personal use fails to recognize the “amount of the

controlled substance is not the only factor which may be considered” in

determining intent. State v. Adams, 554 N.W.2d 686, 692 (Iowa 1996). In the

context of controlled-substance prosecutions, a defendant’s intent to deliver also

can be inferred from the manner of wrapping and packaging the drugs. State v.

Birkestrand, 239 N.W.2d 353, 362 (Iowa 1976); State v. See, 532 N.W.2d 166,

169 (Iowa Ct. App. 1995). Additionally, “opinion testimony by law enforcement

personnel experienced in the area of buying and selling drugs may be offered as
                                         18



evidence for purposes of aiding the trier of fact in determining intent.” State v.

Grant, 722 N.W.2d 645, 648 (Iowa 2006). Our supreme court has instructed:

        [W]hile a witness may not testify whether marijuana is held for
        personal use, [a witness] may testify on the pattern or modus
        operandi of a certain offense and compare the facts of the case to
        it. The distinction is that, on the one hand, the witness is asked for
        an opinion based upon certain evidence as it relates to a well-
        defined modus operandi and on the other, an opinion on the guilt or
        innocence of the defendant. The former is proper; the latter is not.

State v. Olsen, 315 N.W.2d 1, 6-7 (Iowa 1982) (citations omitted) (noting the

court has approved the question, “did defendant’s actions fit within the modus

operandi, so long as the witness is not asked whether the defendant is innocent

or guilty”).

        During trial Smull, who had eighteen years of experience in narcotics

investigations, testified marijuana users ingest the drug by smoking or eating it.

For smoking, various types of paraphernalia are used, including ceramic pipes,

blunts, and items that have been altered to be a pipe—pop cans, beer cans,

hollowed-out cigars. Based on the heat source applied to the drug pipes that

Smull had seized, one could not apply the heat source to plastic because the

plastic would melt.

        Smull explained he had investigated hundreds of cases involving the

distribution of marijuana and is familiar with how the drug is packaged for

shipment to Iowa—brick forms, 20-pound bundles, 40-pound bundles—and how

dealers package marijuana for users—depending on the increment being sold,

brick form, sandwich baggies, or gallon-sized locked baggies.
                                         19



       Smull explained the hierarchy of dealers: low-level dealers sell to users;

mid-level dealers sell to low-level dealers and users; high-level dealers deal in

different weights than the mid-level dealers; and the distributor is at the top

providing large quantities to the community area. Smull testified, in general, any

“amount of marijuana can be a deliverable amount of drugs . . . . Delivering is

transferring a controlled substance from one person to another, so any amount

can be deliverable.” When a customer calls and places an order, drug dealers

sometimes “go out and meet customers on the street,” sometimes they meet out

in public, “it depends on the method of operation.”

       Sergeant Smull testified common places for drugs to be hidden on a

person are “the crotch area, their buttocks area, [and] their shoes.” He also

explained cell phones can be relevant to a narcotics investigation, and based on

his experience, multiple cell phones have been found on individuals involved in

the distribution of controlled substances.

       Smull testified a dealer sells marijuana to the user by weight.

               Q. If a customer ordered up a nickel bag of marijuana, what
       portion of a sandwich baggy would be encompassed in packaging
       up that nickel quantity? A. We’ve seen it in the corners.
               Q. As you get to higher increments, like the half-ounce,
       what packaging have you seized in the past that would contain
       quantities like that? A. I’ve seen a larger portion of the corner used
       in a full sandwich baggy.

       Smull explained the price of “low-grade” marijuana by weight. The lowest

increment sold by a dealer to a user is a one-pipe/nickel bag, 1-2 grams for

$5.00. The next level sold on the street to a user is 1/8 ounce, 3-3.5 grams for

$10. The next level commonly sold to a user is 1/4 ounce of marijuana, 7 grams
                                          20



for $25. The final quantity that Smull would associate, generally, with a “user

purchase” is 1/2 ounce, 14 grams for $50.

      Smull had experienced a user buying a one-ounce quantity but such a

user purchase occurred “very rarely”—“more of an anomaly.” One ounce, 28.35

grams of low-grade marijuana, costs $80 to $100.

      After Smull reviewed the police department’s investigative reports, he

understood that the baggie holding 12.86 grams was found inside the bag

holding 17.86 grams.     Based on his experience, Smull testified the inside

baggie’s net weight was consistent with the sale of a “half ounce” on the street.

But the 17.86 grams in the outer bag was not consistent with the user-purchase

quantities he had previously described.

             Q. Okay. So it’s not a half ounce? A. No.
             Q. It’s not an ounce? A. No.
             Q. Is that an odd amount? A. Yes.
             ....
             Q. Would there be any reason for an individual if they were
      to purchase an ounce of marijuana for personal use to have it
      broken down into two separate bags? A. I’ve not seen it that way.
             Q. All right. Now, when you consider the relationship of
      those two bags of marijuana to one another, in your expert opinion,
      what is significant to you about those two items? [Objection,
      discussion, objection overruled] A. Reference the two baggies, the
      one inside that was packaged up in the half ounce inside the bigger
      bag that had loose marijuana.
             Q. Is that significant to you? A. It can be, yes.
             ....
             Q. Sergeant Smull, in your analysis of the evidence, what
      are the factors that are critical you? A. When you look at all of it
      together, when you look at the marijuana that was found, this could
      be considered for distribution.
             Q. Okay. Is the method of packaging and the breakdown
      between the two quantities significant to you? A. The packaging is
      consistent with what we’ve seen in our investigations with the
      sandwich baggies. The half-ounce quantity that was inside the
      larger bag is sold on the street.
                                        21




      The district court found Miller guilty beyond a reasonable doubt “using its

reason, common sense, and experience and considering all the facts and

circumstances, for example”:

      [Miller’s] location in Davenport, his out of the way route to a main
      road, his failure to stop when the officer activated his lights, the
      credibility finding of the officer’s statements regarding the pants, the
      rocking motion of the car, the inconsistent statements [he was on
      his way to an auto parts store, he was going to stop by the female’s
      house], the pungent odor of the marijuana, the location of the
      marijuana in [Miller’s] pants, [and] the amount of marijuana and its
      manner of packaging.

      We note the overall quantity (30.72 grams) of the drugs Miller possessed

is more than a “rare” or anomalous user-purchase of one ounce (28.35 grams).

This fact, the drug’s brick-like appearance, the double-baggie packaging, the two

cell phones, the lack of a user’s paraphernalia, and the expert testimony was

sufficient evidence to support the court’s conclusion Miller intended to deliver, at

least some, of the marijuana found in his possession. See State v. Dinkins, 553

N.W.2d 339, 342 (Iowa Ct. App. 1996).

      AFFIRMED.
