              IN THE SUPREME COURT OF IOWA
                            No. 76 / 05-0020

                         Filed October 13, 2006


STATE OF IOWA,

      Appellee,

vs.

DOUGLAS ARNOLD GRANT,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Woodbury County, John D.

Ackerman, Judge.



      Defendant    convicted     of   possession   with   intent   to   deliver

methamphetamine appeals challenging sufficiency of evidence to show

intent to deliver. The court of appeals affirmed. DECISION OF COURT OF

APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.



      Martha M. McMinn, Sioux City, for appellant.



      Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant

Attorney General, Nicholaus D. Garwick, Intern, and Thomas S. Mullin,

County Attorney, for appellee.
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CARTER, Justice.

      Defendant, Douglas Arnold Grant, convicted following a bench trial of

possession with intent to deliver methamphetamine in violation of Iowa

Code section 124.401(1)(c)(6) (2003), a class “C” felony, appeals, challenging

the sufficiency of the evidence to show intent to deliver the controlled

substance found in his possession.         After reviewing the record and

considering the arguments presented, we affirm the decision of the court of

appeals and the judgment of the district court.

      Officers Wagner and Tisher of the Sioux City Police Department, who

were members of an area drug task force, were trying to locate two persons

suspected of manufacturing methamphetamine. Information they received

from an informant indicated that defendant knew the suspects and might

know of their whereabouts.

      The officers went to a house in Sioux City where defendant and his

brother were residing. They inquired whether the persons they were looking

for were inside the house.     When defendant answered in the negative,

Officer Wagner asked if they could search the house to verify that their

suspects were not there. Defendant replied that they could.

      After entering defendant’s residence, the officers discovered that
defendant and his brother had recently been smoking marijuana in one of

the rooms. Officer Wagner asked if they could also search the residence for

marijuana. Defendant agreed that they could. The officers’ search for

marijuana and the persons they were looking for was unproductive, but

they did find an address book containing the names of two persons known

to them as manufacturers and distributors of methamphetamine.

      At this point, Officer Wagner asked defendant whether he had any

methamphetamine in the house. Defendant acknowledged that he might

have an “eightball,” which in drug parlance is approximately one-eighth of
                                         3

an ounce. He led Officer Wagner to a location in the basement where two

sealed tins were secreted above an air duct. In opening the tins, the officers

discovered eight individually wrapped packages of methamphetamine

totaling 5.38 grams in weight. 1 Also contained in one of the tins was the
plastic shell of a ballpoint pen with the ink cartridge removed. The officers

identified this object as a “tooter” used for inhaling methamphetamine

fumes.

       Defendant was charged with possession with intent to deliver more

than five grams of methamphetamine, a class “B” felony.               At his trial,

Officers Wagner and Tisher testified and described the events that we have

recited. Officer Wagner testified that, in his experience involving more than

100 cases, the packages containing between .58 and .66 grams were

“dosage” units designed for sale as such in order to produce a quick high.

He further testified:

              Q. And what is the significance of the fact that you see
       eight individually wrapped baggies of methamphetamine based
       on your training and experience as a police officer and as a
       Drug Task Force officer?       A. Through my training and
       experience through both positions, an individual that uses
       methamphetamine has no reason to take methamphetamine—
       a larger substance of methamphetamine and put it into
       individual baggies when they could continually go back to the
       original bag and use their methamphetamine as they received
       it from the original bag. I don’t see any reason why a user of
       methamphetamine would want to go through the hassle of
       individually packaging all their methamphetamine in small
       quantities of approximately half-gram to a little more—to one of
       them being a teener, one-sixteenth of an ounce of
       methamphetamine. It wouldn’t be common practice for a user
       of methamphetamine to divide the methamphetamine into
       separate packaging like that.

On cross-examination, defendant’s counsel developed the fact that no

packaging material, scales, or large amounts of cash were found in the

       1The individual weights for the eight packages were .66 grams, .65 grams, .64
grams, .40 grams, .58 grams, .62 grams, .64 grams, and 1.19 grams.
                                      4

officers’ search and that the address book that had been located did not

describe particular drug transactions. On redirect, Officer Wagner testified:

            Q. Is the fact that you did not see pay/owe sheets,
      scales, or cash with the eight separately wrapped baggies of
      methamphetamine, does that detract from your conclusion
      that what you saw Mr. Grant had with him was consistent with
      drug dealing? A. No, it does not.
              Q. Why doesn’t it detract from your conclusion? A. The
      eight individually packaged baggies in and of itself is conducive
      to me that someone is—has these eight packages to be
      distributed. As I stated earlier, if someone was just a user of
      illegal drugs, it would be time-consuming and cumbersome to
      take their larger quantity and break it up into separate baggies
      for them to be using at a different date when they could just
      take out of the original bag and use what they wanted and
      keep it.

On cross-examination, Sergeant Kirkpatrick of the Sioux City Police

Department, supervisor of the area drug task force, admitted that the 5.38

quantity of methamphetamine found in defendant’s possession did not

exceed that which might be acquired for personal use.

      Sergeant Kirkpatrick also testified concerning the buying and selling

of methamphetamine on the street. His testimony included the following:

           DEFENDANT’S ATTORNEY: And I believe you have relied
      on the packaging to indicate that it was ready for resale.
      Couldn’t it just have easily been ready for resale by the person
      whoever sold this to Mr. Grant? A. Anything is possible.
             PROSECUTING ATTORNEY: Is it probable? A. In my
      opinion, no. Generally, if he’s going to go and buy an eightball
      from a dealer that sells eightball quantities, again, we’re talking
      about the level in which you exist in this higher food chain,
      that person is going to have eightballs for sale, probably
      ounces for sale. Somebody that’s selling dosage units is right
      at the bottom of the distribution network. They sell dosage
      units. They package them for quick sale. If you are in the
      market to buy eightballs or a couple of eightballs, your dealer
      is generally going to have his drugs packaged that way because
      of his position in the food chain.

      Following a bench trial, defendant was convicted of possessing less

than five grams with intent to deliver, a class “C” felony. On appeal he
                                       5

challenges the sufficiency of the evidence to show an intent to deliver any

portion of the controlled substance found in his possession and, in the

alternative, argues that his conviction was against the weight of the

evidence. We consider these issues. Other facts relevant to our decision

will be considered in our discussion of the legal issues presented.

      I. Proof of Intent to Deliver.

      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. Adams, 554 N.W.2d 686, 692 (Iowa

1996). We have also recognized that in controlled-substance prosecutions

opinion testimony by law enforcement personnel experienced in the area of

buying and selling drugs may be offered as evidence for purposes of aiding

the trier of fact in determining intent. State v. Olsen, 315 N.W.2d 1, 6-7

(Iowa 1982). We stated in Olsen:

      [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.

Id. (citations omitted). We have also recognized that the intent to deliver a

controlled substance may be inferred from the manner of packaging drugs,

large amounts of unexplained cash, and the quantity of drugs possessed.

Adams, 554 N.W.2d at 692; State v. Birkestrand, 239 N.W.2d 353, 362 (Iowa

1976); State v. Dandridge, 213 N.W.2d 903, 904 (Iowa 1974).

      In State v. Dinkins, 553 N.W.2d 339 (Iowa Ct. App. 1996), the court of

appeals was presented with a challenge to the sufficiency of the evidence to

establish an intent to deliver crack cocaine. The court found that the fact

that the defendant was observed interacting with persons on the street in
                                        6

an area where drug trafficking was common, possessed individually

wrapped rocks of crack cocaine, along with evidence from an experienced

police officer that these actions conformed to those of drug dealers was

sufficient to support a finding of intent to deliver. Dinkins, 553 N.W.2d at

342.

       In the present case, although the quantity of drugs possessed was

characterized as not exceeding that which might be acquired for personal

use, the quantity was nonetheless substantial. This fact coupled with the

packaging of the drugs and the expert testimony of experienced police

officers was sufficient evidence to support the trial court’s finding that

defendant intended to deliver at least some of the methamphetamine that

was found in his possession. Defendant’s argument to the contrary is

based on the assumption that he purchased the drugs wrapped in the form

in which they were found at his residence. However, the State countered

this theory through the testimony of Sergeant Kirkpatrick that one

purchasing methamphetamine for personal use in the quantity that was

involved here would ordinarily receive the substance in bulk packaging

form. The district court, as trier of fact, could have found from all of the

evidence that defendant possessed the substance in individual packages of

small amounts to facilitate its sale.

       II. The Weight-of-the-Evidence Argument.

       As an alternative argument, defendant contends that, if it is found

that the evidence was sufficient to show intent to deliver, that finding would

be against the weight of the evidence presented. This issue was raised in

the district court in a motion for new trial based on Iowa Rule of Criminal

Procedure 2.24(2)(b)(6). In acting on such motions, the district court has

considerable discretion. State v. Ellis, 578 N.W.2d 655, 659 (Iowa 1998).

We review both a grant and a denial of relief based on a weight-of-the-
                                      7

evidence claim for an abuse of discretion. State v. Reeves, 670 N.W.2d 199,

202 (Iowa 2003).

      The granting of a new trial based on the conclusion that a verdict is

against the weight of the evidence is reserved for those situations in which

there is reason to believe that critical evidence has been ignored in the fact-

finding process. In the present case, all of the evidence presented was

carefully reviewed by the district court in its findings of fact. There is no

basis for concluding that any critical piece of evidence was ignored in the

trial court’s decision process. The district court did not abuse its discretion

in denying defendant’s claim that its decision was against the weight of the

evidence.

      We have considered all issues presented and conclude that the

decision of the court of appeals and the judgment of the district court

should be affirmed.

      DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT

COURT AFFIRMED.

      All justices concur except Wiggins, J., and Ternus, C.J., who dissent,

and Hecht, J., who takes no part.
                                      8

                                               #76/05-0020, State v. Grant

WIGGINS, Justice (dissenting).

      I respectfully dissent. The only evidence of the defendant’s intent to

deliver is the officers’ discovery of eight separate bags of methamphetamine

coupled with the officers’ opinion testimony about the purpose of

individually wrapped bags. Officer Wagner best expressed the basis of the

officers’ opinion. He testified:

       I don’t see any reason why a user of methamphetamine
       would want to go through the hassle of individually
       packaging all their methamphetamine in small quantities of
       approximately half-gram to a little more—to one of them
       being a teener, one-sixteenth of an ounce of
       methamphetamine. It wouldn’t be common practice for a
       user of methamphetamine to divide the methamphetamine
       into separate packaging like that.

      The officers did not find packaging materials, scales, large amounts of

cash, or pay/owe sheets in the residence. Although the officers did find an

address book containing the names of two persons known to them as

manufacturers and distributors of methamphetamine, the officers did not

find anything that could be construed as a customer list. Additionally, in

the same tin as the methamphetamine, the officers found drug

paraphernalia used to consume methamphetamine, not to sell it. Finally,

the officers conceded the quantity of drugs found did not exceed that which

might be acquired for personal use.

      Contrary to the officers’ testimony, there are many reasons,

consistent with personal use explaining why the methamphetamine was

packaged separately. First, the defendant may have bought the drugs in

eight different packages.    Second, the defendant may have bought the

methamphetamine in one package and repackaged the drugs, planning to

take just enough to use at one time. Third, personal use makes perfect
                                     9

sense when the individually packaged drugs were found in the same tin as

the device to use the drugs.

      “[I]ntent, being a mere act of the mind . . . is usually established by

appropriate inference and presumptions from the overt acts proved.” Hall v.

Wright, 261 Iowa 758, 771-72, 156 N.W.2d 661, 669 (1968). Without any

additional evidence of intent, the finder of fact would have to speculate

whether the packaging indicated the defendant had the intent to sell the

methamphetamine. Under this record, it is just as likely that the packaging

indicated the defendant intended to use the methamphetamine for personal

use. Accordingly, I believe finding eight packages of methamphetamine, in

small quantities consistent with personal use, in the same container as

paraphernalia used to consume these drugs, without any other evidence is

insufficient to support a conviction beyond a reasonable doubt for

possession with intent to deliver methamphetamine. I would reverse the

conviction.

      Ternus, C.J., joins this dissent.
