                      IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1299
                            Filed November 26, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CLIFF ALLEN LOWE,
      Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Appanoose County, Annette J.

Scieszinski, Judge.




      Cliff Lowe appeals his convictions, judgments, and sentences for two

counts of conspiracy to manufacture methamphetamine.         REVERSED AND

REMANDED.




      Amanda Demichelis of Demichelis Law Firm, P.C., Chariton, for appellant.

      Thomas J. Miller, Attorney General, Bridget A. Chambers, Assistant

Attorney General, and Susan Daniels, County Attorney, for appellee.




      Heard by Doyle, P.J., and Bower and McDonald, JJ.
                                           2


DOYLE, P.J.

       Cliff Lowe appeals his convictions, judgments, and sentences for two

counts of conspiracy to manufacture methamphetamine. Among other things, he

contends the State failed to prove the conspiracy element of the crime in each

count and, as a result, the evidence was insufficient to support his convictions.

Upon our review, we agree.       We therefore reverse Lowe’s convictions and

remand for entry of judgment of acquittal. See State v. Dullard, 668 N.W.2d 585,

597 (Iowa 2003); State v. Caslavka, 531 N.W.2d 102, 108 (Iowa 1995).

       I. Background Facts and Proceedings.

       Considering all of the record evidence in the light most favorable to the

State, “including all reasonable inferences that may be fairly drawn from the

evidence,” see State v. Showens, 845 N.W.2d 436, 439-40 (Iowa 2014), a

reasonable jury could have found the following facts.

       Pseudoephedrine is a key ingredient used in the manufacture of

methamphetamine. See United States v. Yager, 328 F.3d 1008, 1009 (8th Cir.

2003). Both federal and Iowa law require retailers to obtain, among other things,

identification   information   and   the       signature   of   persons   purchasing

pseudoephedrine.      See 21 U.S.C. § 830; Iowa Code § 124.212A (2013)

(requiring pharmacists to prepare electronic log to record transactions). In Iowa,

the information collected is stored in the National Precursor Log Exchange

(NPLEx) system database, which is accessible to law enforcement officers. The

NPLEx system keeps track of not only purchases of pseudoephedrine, but it also

blocks persons from purchasing pseudoephedrine if the person has exceeded

the amount allowed to be purchased by law, and it logs that information.
                                        3


      In the summer of 2012, Centerville police officers assigned to the South

Central Iowa Drug Task Force were monitoring the NPLEx system, and they

observed that several residents of the small town Udell, Iowa, located near

Centerville, were regularly purchasing pseudoephedrine.         These residents

included Lowe, as well as Jodi Sindt and Nunzio Lloyd. Sindt and Lloyd lived

close to a warehouse owned by Lowe’s mother. Based upon these individuals’

purchases of pseudoephedrine, the taskforce began an investigation of Lowe,

Sindt, and Lloyd, including monitoring any new pseudoephedrine purchases and

surveilling the individuals’ residences, as well as Lowe’s mother’s warehouse.

      The NPLEx system records show from August 16, 2010, to January 17,

2013, Sindt purchased approximately fifty-six boxes of pseudoephedrine. During

the same time period, the records show Lowe purchased twenty-six boxes, and

Lloyd purchased twenty-four boxes. Neither Lowe nor Lloyd were blocked during

that three-year time period from purchasing pseudoephedrine; all of these

purchases were legal.

      In addition to the NPLEx system, officers received logs kept by several

retailers when items known to be used in the manufacture of methamphetamine,

such as muriatic acid and cold compresses, were purchased. Cold-compress

logs kept by one retailer showed Sindt purchased approximately sixteen

compresses from June 14, 2012, to January 16, 2013. During the same time

period, the logs show Lowe purchased two. The sulfuric/muratic-acid/lye logs

kept by another retailer from December 29, 2011, to January 11, 2013 showed

Sindt purchased either acid or lye four times, and Lowe one time. Lloyd’s name

does not appear on any of these logs.
                                         4


        In November 2012, officers involved in the investigation received an email

notification from the NPLEx system that Sindt had recently purchased

pseudoephedrine. Thereafter, the officers went to surveil her, and they observed

her vehicle at Lowe’s residence. The officers “sat there for a while and nothing

was happening,” so they left. This was the only time Sindt was seen at Lowe’s

residence during the officers’ surveillance.

        Additionally, the officers also surveilled the warehouse, and one day they

observed Lowe “going back and forth . . . between the warehouse, his house,

and [Lloyd’s] house and burning . . . some trash or something in the field that was

south of the warehouse.” Lowe was also observed at Lloyd’s residence one

time.

        In January 2012, officers obtained search warrants for several locations,

including the residences of Lowe and Sindt and the warehouse owned by Lowe’s

mother.    During the search of Lowe’s residence and the warehouse, several

items and equipment used in manufacturing methamphetamine were discovered,

along with two items each containing at least five grams of methamphetamine.

However, no evidence of any “evidentiary value” was found at Sindt’s residence,

such as evidence of manufacturing or use of methamphetamine. Lowe was the

only person discovered at the warehouse at the time of the search. As a result of

the investigation, seven people were arrested and charged that day, including

Lowe, Lloyd, and Sindt.

        On March 5, 2013, Lowe was charged by trial information with two counts

of conspiracy to manufacture, deliver, and/or possess with intent to deliver
                                            5


methamphetamine, in violation of Iowa Code sections 124.401(1)(a)(7)(a) and

.413.1 Counts I and II asserted the same facts, specifically, that Lowe,

      on or about January 22, 2013, . . . did unlawfully and willfully
      unlawfully act with, enter into a common scheme, design with or
      conspire with one or more persons to manufacture, deliver or
      possess with intent to deliver . . . more than [five] kilograms of a
      mixture or substance containing a detectable amount of [the
      controlled substance] methamphetamine.

No lesser-included crimes were charged.

      The matter proceeded to trial in May 2013. Sindt testified on behalf of the

State concerning her involvement with Lowe pursuant to a plea agreement she

entered into with the State. Sindt admitted at trial she had purchased one pack

of pseudoephedrine pills for Lowe in December 2012, for which he paid her

$100, but she adamantly testified that was the only time she ever bought

anything for Lowe.          She admitted she had given Lowe four or five

pseudoephedrine pills “a couple of times” in 2012 when he was at her residence

and had asked for them. She also admitted she had given him some of her

empty soda bottles in 2012 after he told her they were perfect for “shaking” and

he asked her for them.        In addition, she admitted she once rode along with

another person she knew was buying an over-the-counter cleaning product used

in manufacturing methamphetamine for Lowe. She testified she suspected Lowe

was manufacturing methamphetamine, but she denied any other involvement

with Lowe or ever being present when he manufactured methamphetamine.

However, Sindt fully admitted she purchased pseudoephedrine regularly for

another person who did manufacture methamphetamine, and she testified she

      1
          Two other counts alleged were ultimately dismissed and are not relevant to this
appeal.
                                        6


had been present when that person had cooked methamphetamine “at least ten

times.” She even testified that Lowe had become angry with her once because

she bought pseudoephedrine for the other manufacturer and not for him. Sindt

testified the other manufacturer sometimes paid her in methamphetamine, which

she then sold.

      Lloyd did not testify. Other than his purchases of pseudoephedrine, the

only trial testimony offered connecting him to Lowe in any way was that one

officer, during his surveillance of the warehouse, observed Lowe “going back and

forth . . . between the warehouse, his house, and [Lloyd’s] house and . . . burning

some trash or something in the field that was south of the warehouse.” The

officer testified, based upon his training and experience, people who “are

manufacturing meth usually or sometimes would try to burn the bottles or blister

packs or other remnants of a lab to get rid of the evidence.” Additionally, an

officer testified one day while surveilling Lowe, he observed that Lowe went to

Lloyd’s “residence at least once.”

      At the close of the State’s evidence, Lowe moved for a judgment of

acquittal, arguing insufficient evidence had been presented to prove, beyond a

reasonable doubt, that Lowe entered “into a common scheme, design with or

conspire[d] with one or more persons to manufacture, deliver, or possess with

intent to deliver a controlled substance on or about January 22, 2013.”

Additionally, Lowe asserted he was being placed in double jeopardy for being

charged twice with conspiracy to manufacture, as stated in counts I and II, based

upon the exact same facts. The State resisted, asserting there was sufficient

evidence and that methamphetamine in an amount above five grams was found
                                         7


in two separate and distinct objects, allowing the State to charge for two separate

offenses. The court denied Lowe’s motion. At the close of Lowe’s case-in-chief,

he reasserted his motion for a judgment of acquittal on grounds previously urged,

and the court again denied the motion.

      The jury returned a verdict finding Lowe guilty of both conspiracy charges.

He now appeals, contending, among other things, insufficient evidence of a

conspiracy was presented to prove that element of both counts beyond a

reasonable doubt.

      II. Scope and Standards of Review.

      We review sufficiency-of-the-evidence challenges for correction of errors

at law. State v. Thomas, 847 N.W.2d 438, 442 (Iowa 2014). We consider all

evidence in the record, both favorable and unfavorable to the verdicts, as well as

all reasonable inferences that may be fairly drawn from the evidence.          See

Showens, 847 N.W.2d at 439-40.        We uphold the jury’s verdicts if they are

supported by substantial evidence in the record. See id. at 440. “Evidence is

considered substantial if, when viewed in the light most favorable to the State, it

can convince a rational jury that the defendant is guilty beyond a reasonable

doubt.”   State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012).           “Direct and

circumstantial evidence are equally probative.”     Iowa R. App. P. 6.904(3)(p).

“Inherent in our standard of review of jury verdicts in criminal cases is the

recognition that the jury [is] free to reject certain evidence, and credit other

evidence.” Thomas, 847 N.W.2d at 442.
                                        8


      III. Discussion.

      Iowa Code section 124.401(1) makes it a crime “for any person to

manufacture, deliver, or possess with the intent to manufacture or deliver, a

controlled substance . . . or conspire with one or more other persons to

manufacture, deliver, or possess with the intent to manufacture or deliver a

controlled substance.”   (Emphasis added.)      Subsection (b)(7) classifies the

offense as a “B” felony if the crime involves “[m]ore than five grams but not more

than five kilograms of methamphetamine.” Iowa Code § 124.401(1)(b)(7). Under

the definition of conspiracy set forth in Iowa Code section 706.1, to convict Lowe

of conspiracy to manufacture a controlled substance, the State was required to

prove (1) Lowe agreed with one or more persons that one or both of them would

manufacture or attempt to manufacture methamphetamine; (2) Lowe entered into

such an agreement with the intent to promote or facilitate the manufacture of

methamphetamine; (3) one of the parties to the agreement committed an overt

act to accomplish the manufacturing of methamphetamine; and (4) the alleged

co-conspirator was not a law enforcement agent or assisting law enforcement

when the conspiracy began. See also State v. Kern, 831 N.W.2d 149, 158 (Iowa

2013). The fighting issue here is whether the State proved Lowe agreed with

Sindt or Lloyd that he would manufacture or attempt to manufacture

methamphetamine.

      The Iowa Supreme Court has described an agreement to form a

conspiracy as a “concert of free wills,” “union of the minds of at least two

persons,” and “a mental confederation involving at least two persons.” Id. at 159;

State v. Fintel, 689 N.W.2d 95, 102 (Iowa 2004); State v. Weatherly, 679 N.W.2d
                                        9

13, 17 (Iowa 2004); State v. Speicher, 625 N.W.2d 738, 742 (Iowa 2001); State

v. Boyer, 342 N.W.2d 497, 499 (Iowa 1984). Because “a conspiracy is by nature

clandestine, it will often rest upon circumstantial evidence and inferences drawn

from that evidence.” Kern, 831 N.W.2d at 159; State v. Corsi, 686 N.W.2d 215,

219 (Iowa 2004).

      Circumstantial evidence includes the declarations and conduct of
      the alleged conspirators and all reasonable inferences arising from
      such evidence. Importantly, an agreement need not be—and often
      times is not—formal and express. A tacit understanding—one
      ‘inherent in and inferred from the circumstances’—is sufficient to
      sustain a conspiracy conviction.

Speicher, 625 N.W.2d at 742 (internal citations omitted). Nevertheless:

             Circumstantial evidence of an agreement must be based on
      more than suspicion. Similarly, “circumstantial evidence that
      proves mere presence at the scene of the crime or association with
      those involved in the crime is not sufficient to show an agreement.”
      Mere presence or general association creates no more than
      “conjecture and speculation” of criminal complicity.

Kern, 831 N.W.2d at 159 (internal citations omitted). Although prior case law on

this issue is instructive, conspiracy is an inherently fact-based crime, which

requires us to look to the particular facts, circumstances, and reasonable

inferences in this case. See Weatherly, 679 N.W.2d at 18.

      Lowe contends the supreme court’s opinion in Speicher controls his

appeal and directs a conclusion that insufficient evidence existed to support his

conspiracy conviction. The court discussed its decision in Speicher a few years

later in Weatherly. See id. at 17-18 (discussing Speicher, 625 N.W.2d at 740-

43). There, the court explained:

      In Speicher, police officers observed the defendant smoking a
      cigarette outside of the garage of a home owned by Kelly Page.
      Police suspected the garage was being used to manufacture meth
                                        10


       because they could smell ether around the garage. The police
       subsequently observed Speicher and Page enter the garage and
       eventually leave together. As the two men exited, they detected
       the presence of the police and ran. After they were captured, Page
       gave the officers permission to search the garage. In consenting to
       the search, Page stated, “‘I may as well sign [the consent-to-search
       form], but I want you to understand that I was manufacturing the
       meth for my own use.’” The search divulged “numerous devices
       and items used to make” meth, including “one air-purifying
       respirator and a pair of work gloves.”
               Both Page and Speicher were charged with conspiracy to
       manufacture meth and Speicher was later convicted after a jury
       trial. We reversed his conspiracy conviction. We determined that
       “substantial circumstantial proof of conspiracy . . . [was] woefully
       missing in the record.” We observed that a rational juror could find
       that Speicher was in the garage where a meth lab was located,
       smelled of ether, and ran when made aware of the police. We
       concluded, however, that these and other factors would only
       “permit a jury to infer from Speicher’s presence in the garage that
       he knew Page was manufacturing methamphetamine.” No further
       evidence existed to show “that Speicher agreed with Page to
       participate in the manufacturing process.”
               The holding in Speicher instructs that proof of a conspiracy
       to manufacture meth is not established when two people are seen
       together at a meth lab, smell of ether, and flee after seeing the
       police. Additional evidence is needed to show conspiracy between
       the two or another person.

Id. (internal citations and emphasis omitted).

       Since Speicher, the supreme court has decided several conspiracy-to-

manufacture-controlled-substances cases. See, e.g., Kern, 831 N.W.2d at 159;

State v. Nitcher, 720 N.W.2d 547, 557 (Iowa 2006); Fintel, 689 N.W.2d at 102;

Corsi, 686 N.W.2d at 219; Weatherly, 679 N.W.2d at 17. In each of the cases

since Speicher, the court has upheld conspiracy convictions, distinguishing each

case’s facts from Speicher. See Kern, 831 N.W.2d at 160 (concluding jury could

infer an agreement to conspire to manufacture marijuana where defendant lived

where an extensive marijuana-growing operation was found and knew of the

operation); Nitcher, 720 N.W.2d at 557 (concluding jury could infer an agreement
                                       11


to conspire to manufacture methamphetamine where defendant was discovered

at another person’s residence where a meth lab was found, the defendant’s

clothing was found at the residence smelling of ether and located near coffee

filters, and the defendant’s fingerprint was found on a pie plate that contained

pseudoephedrine and triprolidine at the residence); Fintel, 689 N.W.2d at 102

(concluding an agreement could be inferred in part, even if the defendant took no

part in the actual manufacture of the controlled substance, because the

defendant “knew methamphetamine was being manufactured in his apartment”

and the “defendant’s apartment was littered with the necessary ingredients and

utensils for manufacturing methamphetamine,” permitting the jury to infer a tacit

agreement between the defendant and the manufacturer); Corsi, 686 N.W.2d at

219 (concluding jury could infer an agreement to conspire to manufacture

methamphetamine where defendant was found at another person’s apartment

where methamphetamine was being cooked); Weatherly, 679 N.W.2d at 18

(concluding jury could infer an agreement to conspire to manufacture

methamphetamine where defendant was found fleeing a hotel room rented by

another person where a meth lab was found, and the defendant carried with him

“a distinctive portion of the meth lab”). The present case is distinguishable from

these cases, given the unusual facts of the case.

      Here, viewing the evidence in the light most favorable to the State, there is

no question the State presented sufficient evidence to show Lowe committed an

overt act to accomplish the manufacturing of methamphetamine, element

(3) listed above. The items seized at Lowe’s residence and the warehouse he

frequented were commonly used in methamphetamine labs, and actual
                                       12


detectable amounts of methamphetamine were found.               Additionally, he

purchased unusual amounts of pseudoephedrine and other materials known to

make meth. Sindt testified she believed Lowe manufactured meth. However,

unlike the cases after Speicher, no other person was found at Lowe’s residence

or the warehouse, where the lab and manufacturing supplies were found. The

only evidence presented connecting Sindt to Lowe’s manufacturing of

methamphetamine was that she gave him her empty soda bottles and one time

in December 2012 she bought for him a box of pseudoephedrine. The facts that

Lloyd and Sindt bought what could be considered large amounts of

pseudoephedrine between 2011 to 2013 and lived in this small town with Lowe

near the warehouse where a lab was found are not evidence they agreed with

Lowe to help him manufacture methamphetamine in January 2013.                The

evidence that Lowe had a burn pile near Lloyd’s residence does not evidence an

agreement between the two to manufacture methamphetamine in January 2013.

Neither Lloyd or Sindt were found at the warehouse or Lowe’s residence where

the labs were found.    The bottle found at the warehouse used for cooking

methamphetamine was not the type of soda bottle Sindt testified she gave Lowe.

There was no evidence presented finding either Lloyd’s or Sindt’s fingerprints on

any of the materials found at Lowe’s residence or the warehouse, nor was there

any evidence Lowe’s fingerprints were found at Lloyd’s or Sindt’s residences on

potential methamphetamine-manufacturing materials. In fact, the testimony at

trial showed there was no evidence of any methamphetamine use or

manufacturing thereof at Sindt’s house. There was no testimony about what, if

anything, was found at Lloyd’s house and how that could possibly be tied to
                                          13


Lowe’s manufacturing of methamphetamine. There was no testimony that Sindt

or Lloyd possessed methamphetamine. Our review of the record causes us to

conclude the jury’s finding of guilt as to the crime of conspiracy to manufacture a

controlled substance was not supported by substantial evidence.

       The type of circumstantial proof of conspiracy evident in the supreme

court cases following Speicher is woefully missing in the record before us.

Without proof of any involvement from which to infer an agreement, this essential

element of the offense rests on nothing but conjecture and speculation. The

State has failed, as a matter of law, to tender substantial proof on each of the

essential elements of the offense.

       IV. Conclusion.

       We have considered all issues presented and conclude that, even viewed

in the light most favorable to the State, the evidence fell short of generating a jury

question on the issue of conspiracy.2 Lowe’s motion for judgment of acquittal

should have been sustained by the district court. Accordingly, we reverse the

convictions, judgments, and sentences, and we remand the case to that court for

entry of a judgment of acquittal.        See, e.g., Dullard, 668 N.W.2d at 597;

Caslavka, 531 N.W.2d at 108.

       REVERSED AND REMANDED.




       2
         Because we find the sufficiency-of-the-evidence issue to be dispositive to this
appeal, we need not address Lowe’s other arguments.
