                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-2175
                               Filed April 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRIAN CHRISTOPHER BROWN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Nancy S. Tabor

(suppression motion and sentencing) and Paul L. Macek (bench trial), Judges.



      Brian Brown appeals his judgment and sentence for delivery and

possession with intent to deliver marijuana. AFFIRMED.



      Kent A. Simmons, Bettendorf, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester and

Alexandra Link (until withdrawal), Assistant Attorneys General, for appellee.



      Heard by Danilson, C.J., and Vaitheswaran, Potterfield, Mullins, and

McDonald, JJ. Tabor, J., takes no part.
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VAITHESWARAN, Judge.

       The State charged Brian Brown with delivery of marijuana and possession

with intent to deliver marijuana. Brown moved to suppress statements he made

to officers after asserting his right to remain silent. The district court denied the

motion. Following a bench trial, the court found Brown guilty as charged.

       On appeal, Brown (1) challenges the sufficiency of the evidence

supporting the district court’s findings of guilt and (2) asserts the district court

should have granted his motion to suppress.

I.     Sufficiency of the Evidence

       A.     Delivery of Marijuana

       The State was required to prove the following elements of delivery of

marijuana: (1) On or about April 17, 2014, Brown delivered marijuana, and

(2) Brown knew the substance he delivered was marijuana.           See Iowa Code

§ 124.401(1)(d) (2013). “‘Deliver’ or ‘delivery’ means the actual, constructive, or

attempted transfer from one person to another of a controlled substance . . . .”

Id. § 124.101(7).

       The district court found as follows. Bettendorf police officer Joshua Paul

and a confidential source “made arrangements with [Brown] by telephone and

text for the confidential source to purchase $20 worth of marijuana from [Brown].”

Officer Paul “monitored the telephone call and recognized [Brown’s] voice.” The

location was arranged. The “officer provided the confidential source with a $20

bill.” Officer Paul “made a copy of the $20 bill to document the precise bill to be

used in this transaction” and verified that the confidential source did not have any

drugs in his possession or in his vehicle. The confidential source drove to the
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agreed location, got into another vehicle in which Brown was a front-seat

passenger, and stayed there for “approximately one minute.” According to the

court, “This was sufficient time to allow an exchange of cash for a small

package.” A police officer subsequently searched the confidential source and

found marijuana.     A later search of the home in which Brown was living

uncovered “the $20 bill . . . Officer Paul provided to the confidential source.”

       Brown contends the State inappropriately relied on circumstantial rather

than direct evidence to prove the delivery of marijuana. He points out that the

State chose not to identify or call the confidential source or the driver of the

vehicle in which Brown was seated, failed to make an “audio recording of the

phone call” and “did not provide messages from texting.”             Brown faces a

significant hurdle: “[c]ircumstantial evidence is” as “probative as direct evidence

. . . to prove a defendant guilty beyond a reasonable doubt.” State v. Brubaker,

805 N.W.2d 164, 172 (Iowa 2011). Indeed, “[i]n a given case, circumstantial

evidence may be more persuasive than direct evidence.” Id.

       Even without the evidence cited by Brown, the State introduced

substantial evidence to support the district court’s findings. See State v. Serrato,

787 N.W.2d 462, 465 (Iowa 2010) (setting forth the standard of review). Officer

Paul testified he “recognized” Brown’s voice from “multiple” interactions with him,

and he matched the phone number dialed by the confidential source with

Brown’s known phone number. He characterized the transaction solidified during

the call as the sale of “one gram of marijuana for $20” at a designated location.

He “relayed this information” to Sergeant Doug Scott, searched the source and
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his vehicle, gave the source the marked money, and followed the source to the

designated location.

       Officers believed Brown would arrive in a “white four-door car.” He did.

Sergeant Scott, who was already at the scene, testified he watched as the

confidential source pulled into the lot. “Within minutes,” a white car with two

individuals inside “pulled in” and parked next to the confidential source’s vehicle.

Sergeant Scott was “[l]ess than 16 feet” away from both vehicles and his view

was unobstructed. The confidential source “climb[ed] into the rear of the white

vehicle.” “[A]bout a minute went by [and] there was some movement around

between the [front] passenger and the rear passenger.” The confidential source

returned to his vehicle. Later, the source met with Sergeant Scott and gave him

“approximately 1.1 grams of marijuana.” Sergeant Scott searched the source’s

vehicle and body and found no other money or narcotics. Meanwhile, Officer

Paul “positively identif[ied] the front passenger as Brian Brown.” Approximately

one hour later, the white vehicle was located outside the home Brown shared

with his parents.

       Officers obtained a search warrant. They found Brown and seized his cell

phone; it had the same phone number the confidential informant called a few

days earlier.   They also found a jar of “high-grade” marijuana in the home

consistent with the marijuana sold to the confidential source.            Near the

marijuana, they found a digital scale.       In a safe, they found a handgun and

$2000, comprised primarily of $20 bills, including the marked $20 bill Officer Paul

gave the confidential source.
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       The district court’s fact findings, drawn almost verbatim from the officers’

trial testimony, support the verdict on the charge of delivery of marijuana. While

it is true the officers were situated too far away to witness the actual exchange of

drugs for money, “proof of possession [by a defendant] is not necessary for proof

of delivery.” State v. Spies, 672 N.W.2d 792, 796 (Iowa 2003).

       B.     Possession of Marijuana with Intent to Deliver

       The State was required to prove: (1) On or about April 21, 2014, Brown

knowingly possessed marijuana, (2) at the time Brown possessed the marijuana

he knew it was marijuana, and (3) Brown possessed the marijuana with the intent

to deliver it to someone else. See Iowa Code § 124.401(1)(d).

       Brown does not challenge the first two elements but contends there is

scant evidence of his intent to deliver the marijuana to someone else.          The

district court found otherwise. The court stated: “Given the amount of cash found

in the safe with the marijuana and the handgun, and the fact he sold marijuana

four days earlier, beyond a reasonable doubt the defendant possessed this

marijuana with the intent to deliver it.” See State v. Adams, 554 N.W.2d 686, 692

(Iowa 1996) (“Intent [to deliver] may be inferred . . . from large amounts of

unexplained cash, as well as from the quantity of drugs.” (citations omitted));

State v. Wilson, No. 14-0775, 2015 WL 1546451, at *5 (Iowa Ct. App. Apr. 8,

2015) (“‘[T]he presence of a large sum of unexplained cash in connection with

other evidence of drug trading is probative of the previous occurrence of drug

transaction,’ and thus, intent to distribute.” (citations omitted)).           This

determination is supported by substantial evidence, as summarized above.
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II.      Suppression Ruling

         Brown contends the district court should have granted his motion to

suppress statements he made to law enforcement officers. The following facts

are relevant to this issue.

         After officers obtained the search warrant, they found Brown cycling away

from his home. They detained and handcuffed him and placed him in one squad

car, then another. Officer Paul told Brown “he was not under arrest but he was

being detained for the drug investigation.” He gave Brown a Miranda1 rights

sheet.     Brown signed the sheet and checked boxes indicating “Yes” he

understood his Miranda rights, and “No” he did not want to talk to police officers.

Officer Paul sought clarification as to whether Brown wished to talk to him.

Brown responded by talking.

         Brown argues Officer Paul failed to honor his Fifth Amendment right to

remain silent. Our review of this issue is de novo.

         “Once [Miranda] warnings have been given, the subsequent procedure is

clear. If . . . individual[s] indicate[] in any manner, at any time prior to or during

questioning, that [t]he[y] wish[] to remain silent, the interrogation must cease.”

Miranda, 384 U.S. at 473-74. Officers must “scrupulously honor[]” this request.

Michigan v. Mosley, 423 U.S. 96, 104 (1975).

         We need not decide whether Officer Paul scrupulously honored Brown’s

unambiguous assertion of his right to remain silent. See id. at 104 (finding no

violation of Mosley’s right to cut off questioning where “[w]hen Mosley stated that

1
  In Miranda v. Arizona, 384 U.S. 436, 468, 478-79 (1966), the United States Supreme
Court required police to inform suspects subject to custodial interrogation of certain
rights, including “the right to remain silent.”
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he did not want to discuss the robberies, [the detective] immediately ceased the

interrogation and did not try either to resume the questioning or in any way to

persuade Mosley to reconsider his position”); State v. Palmer, 791 N.W.2d 840,

848 (Iowa 2010) (noting the interrogation “promptly terminated” after Palmer

refused to sign a form waiving his Miranda rights). Even if he violated Brown’s

Fifth Amendment right to remain silent, we agree with the State that “[a]ny

potential error was harmless as [Brown] did not make inculpatory statements and

the court did not consider his statements in finding him guilty.”

       “The erroneous admission of evidence in violation of a defendant’s Fifth

. . . Amendment rights is . . . a constitutional error subject to harmless error

analysis.” State v. Peterson, 663 N.W.2d 417, 430 (Iowa 2003). “To establish

harmless error, the State must prove beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.” Id. at 431 (“The inquiry

is not whether, in a trial that occurred without the error, a guilty verdict would

surely have been rendered, but whether the guilty verdict actually rendered in

this trial was surely unattributable to the error.” (citation omitted)).

       Brown’s garrulous exchange with Officer Paul included an admission to

personal use of marijuana but also included repeated denials of actual delivery or

the intent to deliver marijuana. His statements were non-inculpatory and could

not have contributed to the verdict. But even if the district court could have

gleaned something inculpatory in Brown’s statements, the court charged with

entering the verdict refused to take the statements into account. The trial court

categorically stated, “For the purposes of this verdict, the defendant’s statements

which were the subject of the motion to suppress were not considered.” In light
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of this pronouncement, no speculation is required to conclude the verdict “was

surely unattributable to the error” in admitting Brown’s statements. The error was

harmless.

       We affirm Brown’s judgment and sentence for delivery and possession

with intent to deliver marijuana.

       AFFIRMED.
