                    IN THE COURT OF APPEALS OF IOWA

                                     No. 14-0976
                                  Filed July 9, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DOUGLAS EUGENE HOPPE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Lyon County, Nancy L.

Whittenburg, Judge.



      Douglas Hoppe appeals his conviction for conspiracy to manufacture more

than five grams of methamphetamine, contending that the district court erred in

admitting certain evidence. AFFIRMED.



      Adam Gregg, State Public Defender, and Billy A. Oyadare, Assistant

Public Defender, for appellant.

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

General, and Shayne L. Mayer, County Attorney, for appellee.



      Heard by Danilson, C.J., Vaitheswaran and Doyle, JJ.
                                             2


DOYLE, J.

      Douglas Hoppe appeals his conviction for conspiracy to manufacture of

methamphetamine (more than five grams but not more than five kilograms), a

class “B” felony, under Iowa Code section 124.401(1)(b)(7) (2013).1 We affirm.

      I. Background Facts and Proceedings.

      By amended trial information, the State charged Hoppe with four

counts: (1) manufacture, deliver or possess with intent to manufacture or deliver

methamphetamine, or conspiracy to manufacture, deliver, and/or possess with

the intent to manufacture or deliver methamphetamine, in violation of Iowa Code

sections 124.401(1)(b)(7), subject to sections 124.401A, 124.411,and 124.413;

(2) gathering where controlled substances are being unlawfully used, in violation

of sections 124.407, 902.8, and 902.9(3); (3) tampering with, possessing, or

transporting anhydrous ammonia, in violation of section 124.401F; and

(4) possession of marijuana, a schedule I controlled substance, first offense, in

violation of section 124.401(5). Count one pertains to the span of time between

May 2012 and the date of Hoppe’s arrest, June 5, 2013.

      The amount of methamphetamine seized after Hoppe’s arrest weighed a

little over three grams.          Nevertheless, the State charged Hoppe with

manufacturing       or   conspiring     to   manufacture        over   five   grams   of

methamphetamine.           A violation concerning more than five grams of

methamphetamine, but less than five kilograms, is a class “B” felony, while a

violation concerning five grams or less of methamphetamine is a class “C” felony.


      1
          All references herein are to the 2013 Code of Iowa.
                                        3

See Iowa Code § 124.401(1)(b)(7), (c)(6). Because Hoppe was charged with the

more serious class “B” felony offense, he was subject to a twenty-five-year

sentence, rather than a shorter ten-year sentence for the lesser class “C” felony

offense. Iowa Code § 902.9(2), (4).

      In a notice of additional minutes of testimony, the State listed as a witness

Nila Bremer, an Iowa Department of Criminal Investigations criminalist, stating

she would testify to “the amount of methamphetamine that could have been

produced with the amounts of ingredients purchased by [Hoppe] and co-

conspirators. The witness will testify that . . . her analysis would show that the

yield of methamphetamine lab would be in excess of five (5) grams.” Prior to

trial, Hoppe filed a motion to adjudicate law points. His motion asserted, among

other things, that the State’s proposed approach, i.e., theoretical yield analysis,

to meeting its burden of proof concerning the amount of methamphetamine to

which Hoppe manufactured or conspired to manufacture violated his right to due

process. Put another way, Hoppe asserted the use of expert testimony to project

a potential amount of methamphetamine, inferred from known amounts of

pseudoephedrine purchased, violated his constitutional due process rights. The

district court overruled Hoppe’s motion and held that the State could use expert

testimony to support and establish the conspiracy charge.

      At trial, the State offered a report prepared by Bremer that contained an

analysis and calculations of theoretical yields of the amount of methamphetamine

Hoppe could have produced based on the pseudoephedrine hydrochloride

purchased by Hoppe and his co-conspirators.         When asked whether Hoppe

objected to the introduction of the report, Hoppe’s counsel responded, “No
                                       4


objection.” Hoppe made no objections to Bremer’s theoretical yield testimony,

nor did he object when Bremer testified that in her expert opinion Hoppe could

have manufactured more than five grams of methamphetamine based upon the

amount of pseudoephedrine or ephedrine purchased.

      The State offered additional evidence to establish Hoppe manufactured or

conspired to manufacture more than five grams of methamphetamine.           That

evidence included testimony by five men that they had collaborated with Hoppe

to manufacture methamphetamine. One such co-conspirator, Robert Stettnichs,

testified that Hoppe had been providing him methamphetamine since sometime

in 2012, at first for free and later in exchange for pseudoephedrine pills.

Stettnichs traveled to Sioux Falls some thirteen to sixteen times to purchase

pseudoephedrine pills for Hoppe.       The purchases were corroborated by

independent evidence. Each box he purchased contained ninety-six pills. He

testified that Hoppe would give him half to three-quarters of a gram of

methamphetamine in exchange for a box of pseudoephedrine pills. Other co-

conspirators, Michael VanSurksum, Wayne Koele, and Dalles Dodge had similar

dealings with Hoppe. Anthony Lucas sold pseudoephedrine pills to Hoppe in

exchange for cash and, on some occasions, some methamphetamine. After his

arrest, Hoppe told officers he manufactured methamphetamine and that with four

boxes of pseudoephedrine he could make approximately a golf ball size quantity

of methamphetamine.

      After he rested his case, Hoppe filed a motion for judgment of acquittal,

claiming the State failed to meet its burden on the conspiracy charge. Hoppe

made the general claim that the State failed to meet its burden of proof but made
                                            5


no reference to the violations of his constitutional rights Hoppe now alleges in his

appeal. The motion was overruled. The court sustained Hoppe’s motion for

judgment of acquittal concerning the charge of tampering with, possessing, or

transporting anhydrous ammonia, and that count was not submitted to the jury.

      The jury returned guilty verdicts on the remaining three counts—

conspiracy to manufacture methamphetamine, promoting a gathering where

controlled substances are unlawfully used, and possession of marijuana.

Further, the jury specifically found “the amount of mixture or substance

containing a detectable amount of methamphetamine that [Hoppe] conspired with

others to manufacture . . .was more than [five] grams but not more than [five]

kilograms.”

      Thereafter, Hoppe filed a motion in arrest of judgment. Hoppe noted that

his position was “rooted in his arguments earlier stated in his motion to

adjudicate.” The motion further argued that the State’s theoretical yield analysis

is unconstitutional because it violates the equal protection clauses of both the

United States and Iowa Constitutions. Hoppe also asserted “the statute,”2 as

applied to him, is unconstitutionally vague, impermissible, and “[a]lthough a

statute may not be ‘vague’ in the ordinary sense of the word, it may yet violate

due process requirements if it fails to provide explicit standards for those who

enforce it.” The district court overruled the motion. Hoppe was later sentenced




      2
          Hoppe made no reference to any particular statute.
                                          6


to concurrent terms of incarceration not to exceed fifty years, ten years, and one

year, respectively for the three convictions.3

       Hoppe now appeals his conviction of conspiracy to manufacture, deliver,

and/or possess with the intent to manufacture or deliver methamphetamine.4 He

asserts the district court erred in allowing the State to project the amount of

methamphetamine that could have been produced by Hoppe and his co-

conspirators based on the alleged quantity of precursor substances they had

purchased. Specifically, Hoppe alleges that this approach, known as theoretical

yield analysis, (1) violates his constitutional rights to due process; (2) violates his

constitutional rights to equal protection; and (3) is unconstitutionally vague as

applied to him. The State counters that Hoppe failed to preserve several of his

claims for review on appeal, but it argues that in any event, each claim fails on its

merits.


       3
          The fifty-year sentence was imposed for the conspiracy conviction—two times
the indeterminate maximum for a class “B” felony. For persons convicted of a second or
subsequent offense under chapter 124, Iowa Code section 124.411(1) authorizes an
imprisonment term of up to three times the term otherwise authorized. The ten-year
sentence was imposed on the gathering conviction, and the one-year sentence was
imposed on the possession of marijuana conviction.
        4
          We observe that witness names were not placed at the top of each page where
transcript testimony appears in the parties’ appendix. See Iowa R. App. P. 6.905(7)(c)
(“The name of each witness whose testimony is included in the appendix shall be
inserted on the top of each appendix page where the witness’s testimony appears.”
(emphasis added)). Having the name at the top of each page makes it much easier for
us to navigate an appendix, particularly when filed in electronic form. Additionally,
omissions of transcript pages were not indicated by a set of three asterisks. See Iowa
R. App. P. 6.905(7)(e). Furthermore, the exhibits included in the appendix were not
concisely described in the table of contents. See Iowa R. App. P. 6.905(4)(c). By this
note, we do not single out these parties or their attorneys, for we have made similar
observations in countless appeals. Our comment is directed to the appellate bar. While
the noted infractions may seem trivial, the violated rules are not just some rigmarole
designed to create more work for the appellate lawyer. Compliance with the rules saves
time, reduces frustration, and assists this court in meeting its mandate to achieve
maximum productivity in deciding a high volume of cases. See Iowa Ct. R. 21.11.
                                         7


         II. Scope and Standards of Review.

         We review decisions made by a trial court that implicate a defendant’s

constitutional rights de novo. See State v. Hopkins, 860 N.W.2d 550, 554 (Iowa

2015).    However, we review evidentiary rulings, including the admissibility of

expert testimony, for an abuse of discretion. State v. Neiderbach, 837 N.W.2d

180, 190 (Iowa 2013). We will not reverse on appellate review unless the district

court’s decision rests on grounds or on reasons clearly untenable or to an extent

clearly unreasonable. State v. Redmond, 803 N.W.2d 112, 117 (Iowa 2011).

         We review challenges to the sufficiency of the evidence for correction of

errors at law.     State v. Edouard, 854 N.W.2d 421, 431 (Iowa 2014).          We

“consider all of the record evidence viewed in the light most favorable to the

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

evidence.”     State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012) (internal

quotation marks omitted).      “We will uphold a verdict if it is supported by

substantial evidence.” State v. Jacobs, 607 N.W.2d 679, 682 (Iowa 2000).

         III. Discussion.

         Hoppe does not argue the theoretical yield evidence was inadmissible, nor

could he. At trial, Hoppe stated he had “no objection” to Bremer’s report and

made no objections to her testimony. Any evidentiary objection was waived. In

any event, such an objection would have no doubt been fruitless. In reviewing

nearly identical circumstances, our supreme court held a district court did not err

in admitting the same criminalist’s “expected yield from precursors” report. State

v. Casady, 597 N.W.2d 801, 806-07 (Iowa 1999).          The court Casady found

Bremer’s testimony
                                          8


       clearly relevant because it was necessary to prove that the
       conspiracy was to manufacture methamphetamine, and under Iowa
       Code section 124.401(1)(b)(7), it was necessary for the jury to
       determine if Casady conspired to make more than five grams of it.
       The only way for the jury to determine that, without merely
       speculating, was to hear from an expert.

Id. at 806. In another case, a panel of this court followed in the footsteps of

Casady and concluded Bremer’s potential yield evidence was relevant and had

sufficient indicia of reliability to be admissible. State v. Perry, No. 03-1822, 2005

WL 67531, at *3-4 (Iowa Ct. App. Jan. 13, 2005).

       Recognizing the futility of attacking the admissibility of Bremer’s evidence

in this case, Hoppe identifies on appeal the “central issue [as] whether it is legally

permissible, absent a clear statutory authorization, for the State to project the

amount of methamphetamine that could have been produced by [Hoppe] and his

confederates based on the alleged quantity of precursor substances claimed to

have been purchased.” Essentially he asserts the State cannot use theoretical

yield evidence to boot strap a class “C” felony offense (five grams or less) to a

class “B” felony (more than five grams) when the amount seized was less than

five grams. Put another way, Hoppe contends, without saying so in so many

words, that if the theoretical yield evidence is not considered, the State failed to

establish he conspired to manufacture over five grams of methamphetamine, and

his constitutional rights were thereby violated.        The fatal flaw in Hoppe’s

argument is that, even without considering the theoretical yield evidence, other

evidence supports the verdict that Hoppe conspired with others to manufacture

more than five grams of methamphetamine during the May 2012-June 5, 2013

period.
                                         9


       One of Hoppe’s cohorts in crime, Robert Stettnichs, testified that Hoppe

had been providing him methamphetamine since sometime in 2012, at first for

free and later in exchange for pseudoephedrine pills. Stettnichs made some

thirteen to sixteen pseudoephedrine pill purchases for Hoppe. The pills were

purchased by the box.        This was corroborated by independent evidence.

Stettnichs testified that Hoppe would give him half to three-quarters of a gram of

methamphetamine he made in exchange for a box of pseudoephedrine pills.

Putting pencil to paper, a jury could reasonably conclude Hoppe furnished

Stettnichs with 6.5 to 12 grams of methamphetamine manufactured from the pills

provided by Stettnichs during the course of the conspiracy. This evidence alone

clears the five-gram hurdle.5 Viewing this evidence, as well as the evidence of

the actual weight of the seized methamphetamine, we conclude substantial

evidence supports the jury’s finding that Hoppe “conspired with others to

manufacture an amount [of methamphetamine] that was more than 5 grams but

not more than 5 kilograms.” With the verdict amply supported by sufficient other

evidence, we need not consider Hoppe’s constitutional arguments concerning the

projected yield evidence, nor do we need to consider the State’s error

preservation arguments.




5
   In interpreting Iowa Code § 124.401(1)(b)(7), the supreme court held the statute
authorizes “the State to aggregate any manufactured substance falling under either or
both of [the manufacturing and conspiracy] alternatives in seeking to establish a
prohibited manufacture of methamphetamine.” State v. Royer, 632 N.W.2d 905, 908-09
(Iowa 2001).
                                        10


      IV. Conclusion.

      Substantial evidence supports the jury’s verdict, even without considering

the theoretical yield analysis evidence. We therefore need not address Hoppe’s

due process, equal protection, and vagueness claims concerning the sufficiency

of the theoretical yield evidence. Accordingly, we affirm.

      AFFIRMED.
