                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1912
                            Filed February 10, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

OMAR PINTO SANCHEZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Michael D. Huppert

(motion to dismiss) and Lawrence P. McLellan (trial), Judges.



      Omar Pinto Sanchez appeals his judgment and sentence for conspiracy to

deliver methamphetamine. AFFIRMED.



      Benjamin D. Bergmann and Corey Bird of Parrish Kruidenier Dunn Boles

Gribble Gentry Brown & Bergmann, L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant

Attorney General, for appellee.



      Heard by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       Omar Pinto Sanchez appeals his judgment and sentence for conspiracy to

deliver a controlled substance (methamphetamine).           He (1) challenges the

sufficiency of the evidence supporting the jury’s finding of guilt, (2) contends the

conviction was obtained in violation of double jeopardy principles, and (3) argues

the jury should have been instructed that an acquittal need not be unanimous

and he was previously acquitted of the same charge.

I.     Sufficiency of the Evidence

       The jury was instructed the State would have to prove the following

elements of conspiracy to deliver a controlled substance:

               1. On or about January 21, 2013, the defendant agreed with
       Roger Inlow and/or Roberto Diaz-Lopez:
                      A. That one or more of them would commit the crime
       of delivery of a controlled substance; or
                      B. Attempt to deliver a controlled substance.
               2. The defendant entered into the agreement with the intent
       to promote or facilitate the delivery of a controlled substance.
               3. The defendant, or Roger Inlow or Roberto Diaz-Lopez,
       committed an overt act.
               4. Roger Inlow and/or Roberto Diaz-Lopez were not law
       enforcement agents investigating the delivery of a controlled
       substance or assisting law enforcement agents in the investigation
       when the conspiracy began.

Sanchez contends the jury’s finding of guilt was “based entirely on co-

conspirator/accomplice testimony that [was] wholly uncorroborated.” The State

does not dispute that Inlow and Diaz-Lopez were accomplices whose testimony

had to be corroborated. See Iowa R. Crim. P. 2.21(3) (“A conviction cannot be

had upon the testimony of an accomplice or a solicited person, unless

corroborated by other evidence which shall tend to connect the defendant with

the commission of the offense . . . .”); State v. Jennings, 195 N.W.2d 351, 356
                                               3


(Iowa 1972) (“An accomplice is a person who willfully unites in, or is in some way

concerned in the commission of a crime.”).                        The State simply argues

corroborative evidence was present in the record. We agree.

        A juror reasonably could have found the following background facts. Des

Moines     police   officers   enlisted    a       confidential    informant   to   purchase

methamphetamine from Inlow using $640 in marked bills. Officers observed the

informant give Inlow the money. They followed Inlow’s van to a home in the Des

Moines suburb of Urbandale and watched as he parked his car and went into the

home.

        Meanwhile, officers also tracked a black Jeep that “showed up” at an

earlier controlled drug buy involving Inlow. The Jeep traveled from Des Moines

to the same Urbandale home Inlow entered and left the home around the same

time as Inlow’s vehicle.

        Inlow returned to the confidential informant’s location and gave him two

bags of methamphetamine weighing approximately 3.5 grams each, which the

informant turned over to police.          Officers stopped Inlow and took him into

custody.

        Officers also stopped the Jeep shortly after following the occupants as

they ran two errands. Diaz-Lopez, who was Sanchez’s brother-in-law, sat in the

driver’s seat; Sanchez was in the front passenger seat.

        Officers seized two cell phones from Sanchez’s lap and $3360 in cash

from his pant pocket. The cash included $420 of the $640 in marked bills given

to Inlow for the drug purchase.
                                         4


      Sanchez agreed to speak with officers.          When confronted with his

possession of the marked bills, he stated he obtained them from Diaz-Lopez.

Sanchez denied knowing Inlow or going to the Urbandale home.

      Meanwhile, officers went to the address listed on the Jeep’s registration

and met Sanchez’s wife, who stated Diaz-Lopez lived at the address. Officers

confirmed this fact with the apartment manager. She also told them Sanchez

frequented the apartment.

      Officers obtained a search warrant for Diaz-Lopez’s apartment.        They

discovered “an exceedingly large quantity” of methamphetamine.          They also

found a car payment receipt bearing Sanchez’s name.

      Officers examined the contents of the cell phones seized from Sanchez’s

lap and found text messages on one of the phones from a person named Nikki

Welding. Welding testified she had known Sanchez for two years and the text

messages from her were directed to Sanchez, not Diaz-Lopez.

      With this background, we turn to the accomplice testimony. As noted,

there is no question Inlow and Diaz-Lopez were accomplices. The only question

is whether their testimony was sufficiently corroborated.

      Inlow testified he gave Sanchez $3600 in exchange for methamphetamine

and as payment on a debt. The trade took place at the Urbandale home. Inlow

further testified he kept Sanchez’s number as a contact in his phone.

      Diaz-Lopez testified he and Sanchez kept drugs in his apartment and the

two of them “would agree” upon what happened to the drugs. Because Diaz-

Lopez “didn’t understand English very well,” Sanchez was “the one who did the

dealings.” On the day of their arrest, they both drove to the Urbandale home to
                                        5


deliver drugs to Inlow. Sanchez went inside while Diaz-Lopez waited outside.

Diaz-Lopez denied receiving any of the money from the transaction.

       A reasonable juror could have found the testimony of Inlow and Diaz-

Lopez corroborated by the following evidence: (1) cell phone records showing

outgoing calls from Inlow’s phone to the phone number connected to Sanchez by

Welding; (2) the cash found in Sanchez’s pocket, including the marked bills;1

(3) the apartment manager’s confirmation that Sanchez frequented Diaz-Lopez’s

apartment; (4) the discovery of a receipt belonging to Sanchez inside the

apartment; and (5) the discovery of methamphetamine in the apartment. See

State v. Hutchison, 341 N.W.2d 33, 37 (Iowa 1983) (stating the sufficiency of

corroborative evidence is normally a question of fact determined by the jury).

       We conclude the jury’s finding of guilt on the charge of conspiracy to

deliver methamphetamine was supported by substantial evidence. See State v.

Robinson, 859 N.W.2d 464, 467 (Iowa 2015) (stating we will not disturb a finding

of guilt if substantial evidence supports it); State v. Fintel, 689 N.W.2d 95, 102

(Iowa 2004) (explaining an agreement to form a conspiracy “may be inherent in

and inferred from the circumstances, especially declarations, acts, and conduct

of the alleged conspirators”).

II.    Double Jeopardy

       Sanchez makes several arguments grounded in the Double Jeopardy

Clauses of the state and federal constitutions. See U.S. Const. amend. V; Iowa

Const. art. I, § 12. The Double Jeopardy Clause of the Fifth Amendment protects


1
 A juror reasonably could have inferred that Sanchez spent the remaining marked
money during his two errand runs.
                                          6


against “a second prosecution for the same offense after acquittal,” among other

things. Brown v. Ohio, 432 U.S. 161, 165 (1977). Iowa’s Constitution “requir[es]

that ‘[n]o person shall after acquittal, be tried for the same offence.’” State v.

Lindell, 828 N.W.2d 1, 4 (Iowa 2013) (quoting Iowa Const. art. I, § 12).

       Sanchez’s arguments are based on the following procedural background.

Sanchez was tried three times for crimes arising from this incident. The first trial

ended in a mistrial because the jury could not reach a unanimous verdict.

       Following the court’s declaration of a mistrial, Sanchez moved to dismiss

the second prosecution on several grounds.           He attached a juror affidavit

attesting that “the jury was 11-1 in favor of acquitting [Sanchez] of all charges”

and asserted Sanchez was “sufficiently acquitted by the jury” to trigger the

double jeopardy protections against retrial on the charges. The district court

denied the motion after finding the juror affidavit inadmissible.

       The second prosecution ended with jury findings of not guilty on the

charges of possession with intent to deliver methamphetamine, delivery, and

failure to affix a drug tax stamp.     The sole charge on which the jury found

Sanchez guilty was the charge of conspiracy to deliver methamphetamine.

However, the district court granted Sanchez’s motion for new trial on the

conspiracy count, based on juror misconduct.

       Prior to the third trial, Sanchez filed another motion to dismiss. He argued

retrial on the conspiracy charge violated his constitutional rights against double

jeopardy because he was acquitted of delivering a controlled substance as either

a principal or an aider and abettor and he believed aiding and abetting delivery of

a controlled substance “encompass[ed] all the elements” of conspiracy to deliver
                                          7


a controlled substance. The district court denied the motion. The third trial on

the conspiracy count resulted in a finding of guilt and this appeal.

       A.     Inconsistent Verdicts

       Sanchez argues “[t]he[] verdicts [in the second and third trials] are legally

inconsistent” because “it is impossible for a defendant to commit conspiracy to

deliver a controlled substance without also aiding and abetting delivery of a

controlled substance.”

       The primary opinion on which Sanchez relies is State v. Halstead, 791

N.W.2d 805, 815-16 (Iowa 2010).         Halstead was convicted of assault while

participating in a felony but was acquitted on a charge of first-degree theft, the

only predicate felony that could support the assault conviction. Halstead, 791

N.W.2d at 807. The court addressed “the validity of inconsistent jury verdicts in a

criminal trial in which a single defendant is convicted on a compound offense that

requires, as an element, a finding of guilt on a predicate offense.” Id. at 806.

The court held, “[I]n a case involving conviction of a compound felony when the

defendant is acquitted of the underlying predicate crime, the conviction cannot

stand.” Id. at 814. The court reasoned,

       When a jury convicts a defendant of a compound offense, but
       acquits the defendant on a predicate offense, our confidence in the
       outcome of the trial is undermined.
              . . . . When a jury returns a compound inconsistency, a legal
       error has occurred. There is a substantial possibility that the jury
       has simply made an error, engaged in compromise, or engaged in
       some other process that is inconsistent with the notion of guilt
       beyond a reasonable doubt.

Id. at 815.   Halstead is inapposite because Sanchez was not acquitted of a

predicate felony and found guilty of a compound felony.
                                         8

       Conceding Halstead is not directly on point, Sanchez argues its rationale

should be extended “to cases involving acquittal of a lesser-included offense and

conviction of a greater offense.” While Sanchez makes a creative and facially-

appealing argument, we are not convinced our precedent supports it.

       First, the Halstead court was careful to limit its holding to “truly

inconsistent or irreconcilable” jury verdicts. Id. Cognizant of the concern that the

holding would open “a Pandora’s box,” the court focused “solely on the legal

impossibility of convicting a defendant of a compound crime while at the same

time acquitting the defendant of predicate crimes.” Id.

       Second, Sanchez’s comparison of the “elements” of “aiding and abetting”

with the elements of “conspiracy” is misplaced because aiding and abetting is not

a crime but an alternative method of committing a crime. See Iowa Code § 703.1

(2013); State v. Spates, 779 N.W.2d 770, 780 (Iowa 2010); State v. Corsi, 686

N.W.2d 215, 222 (Iowa 2004); State v. Ayers, No. 11-0314, 2012 WL 163034, at

*1 (Iowa Ct. App. Jan. 19, 2012); see also State v. Tyler, ___ N.W.2d ___, ___,

2016 WL 275275, at *7-8 (Iowa 2016) (explaining aiding and abetting theory).

       Finally, Fintel, 689 N.W.2d at 100-01, cited by the State, poses a

significant hurdle for Sanchez.     There, the jury acquitted the defendant of

manufacturing    methamphetamine       but   convicted    him   of   conspiracy   to

manufacture methamphetamine. Fintel, 689 N.W.2d at 99. The Iowa Supreme

Court found no inconsistency in the jury findings. Id. at 101. The court reasoned

that the jury instruction on manufacturing a controlled substance required a

completed act, whereas the instruction on conspiracy did “not require a

completed manufacture.” Id.; see also Halstead, 791 N.W.2d at 812 (“[Fintel] did
                                           9


not involve a true inconsistency as one could conspire to manufacture a

controlled substance without completing the offense of manufacturing.”).

        The same reasoning applies here. In the second trial, the jury received

the obvious instruction that delivery of a controlled substance required proof of

delivery.     Even    though     Sanchez       was   acquitted   of   delivering   the

methamphetamine or of aiding and abetting in the delivery, the jury reasonably

could have found he entered into an agreement with Inlow and Diaz-Lopez to

have one of them deliver or attempt to deliver a controlled substance. Nothing in

the conspiracy instruction required a completed delivery by him. Indeed, the jury

was instructed, “Conspiracy is a crime separate from the crime of delivery [of] a

controlled substance. The crime of delivery of a controlled substance does not

have to be committed.” And the jury was instructed the “overt act” element of

conspiracy could be “any act indicating the person’s intent to accomplish the

crime of delivery of a controlled substance” and did “not have to be a criminal

act.”

        For these reasons, we conclude double jeopardy principles were not

offended by the jury’s acquittal of Sanchez on the delivery charge—either as an

aider and abettor or principal—and the conviction of Sanchez on the conspiracy

to deliver charge.      Our reasoning encompasses and resolves Sanchez’s

separate contention that “the jury’s verdicts in this case are so logically

inconsistent as to be irreconcilable.” See Halstead, 791 N.W.2d at 807 (stating a

verdict is factually inconsistent where “there is no legal flaw in the jury’s verdict,

but the verdicts seem inconsistent with the facts”). Our reasoning also resolves

his contention that collateral estoppel bars the State from retrying him on the
                                             10

conspiracy charge. See id. at 816 (stating “the doctrine of collateral estoppel is

part of double-jeopardy”).

       B.      Effective Acquittal – First Trial

       Subject to an exception not applicable here, Iowa Rule of Evidence

5.606(b) precludes a juror from testifying

       as to any matter or statement occurring during the course of the
       jury’s deliberations or to the effect of anything upon that or any
       other juror’s mind or emotions as influencing the juror to assent to
       or dissent from the verdict or indictment or concerning the juror’s
       mental processes in connection therewith . . . .

The rule “protects each of the components of deliberation including juror

arguments, statements, discussions, mental and emotional reactions, votes, and

any other feature of the process occurring in the jury room.” Ryan v. Arneson,

422 N.W.2d 491, 495 (Iowa 1988) (emphasis added).

       Sanchez contends the first jury’s 11-1 vote to acquit should have been

“considered an acquittal.” Bypassing the State’s error preservation concerns, we

conclude the district court did not err in finding the juror affidavit inadmissible to

establish the vote, which was a predicate to the “effective acquittal” argument.

But even if the affidavit were admissible, Sanchez cites no authority for the

proposition that a mistrial based on a 11-1 vote for acquittal is the equivalent of

an acquittal. See State v. Bell, 322 N.W.2d 93, 94 (Iowa 1982) (“Because the

polling showed the jury did not agree on the verdict and the jury was discharged

on defendant’s motion for mistrial, the jury did not decide the case. . . . [T]here

was no verdict. Without a verdict there was no acquittal.”). We conclude the

disposition in the first trial did not preclude retrial.
                                        11


III.   Jury Instructions

       A.    Unanimity of Acquittal

       Sanchez challenges the district court’s “fail[ure] to instruct the jury that

acquittal need not be unanimous.” Such an instruction would contravene Iowa

Rule of Criminal Procedure 2.22(5), which requires unanimity in criminal jury

verdicts. See State v. Schuler, 774 N.W.2d 294, 298 (Iowa 2009) (stating the

district court has a duty to give instructions that correctly state the law).

Recognizing this significant hurdle, Sanchez challenges the rule on constitutional

grounds.    He argues “[r]equiring a unanimous acquittal violated [his] Iowa

Constitutional right to Equal Protection and Due Process.” In his view, the rule

treats him differently than civil litigants, whose claims may be resolved without

unanimous verdicts.

       Sanchez has not shown how he is similarly situated to civil litigants.

Having failed to establish this threshold requirement, his equal protection

argument fails. See Varnum v. Brien, 763 N.W.2d 862, 882 (Iowa 2009) (“[I]f

plaintiffs cannot show as a preliminary matter that they are similarly situated,

courts do not further consider whether their different treatment under a statute is

permitted under the equal protection clause.”).

       As for Sanchez’s due process argument, Sanchez cites an opinion

addressing a substantive and procedural due process challenge to a material

witness statute. See State v. Hernandez-Lopez, 639 N.W.2d 226, 236-42 (Iowa

2002). Sanchez does not explain how the requirement of a unanimous verdict in

criminal cases violates either substantive or procedural due process.          We
                                         12


conclude Sanchez failed to establish that the unanimity rule violated due

process.

       We affirm the district court’s refusal to instruct the jury that an acquittal

need not be unanimous.

       B.     Prior Acquittal

       Sanchez contends the district court should have instructed the jury on his

prior acquittals. He argues evidence of the acquittals was “highly relevant, as the

acquittals were based on the same evidence the State presented in his third trial

and the events underlying the various charges are inextricably intertwined.”

       This court has stated, “[I]n Iowa, where there is clear proof defendant

committed a previous crime, evidence of the prior bad act may be admissible

under [Iowa Rule of Evidence 5.]404(b), even though an earlier jury did not

believe beyond a reasonable doubt that defendant had committed the crime.”

State v. Goodson, 516 N.W.2d 30, 33 (Iowa Ct. App. 1994); see also United

States v. Brackett, 113 F.3d 1396, 1400 (5th Cir. 1997) (“A general verdict of

acquittal, exculpating the defendant of liability for a substantive offense, does not

estop the government from introducing the same evidence in a subsequent

prosecution for conspiracy to commit the same offense.”). There is no question

the State could introduce evidence from the prior trials in the prosecution of the

conspiracy charge, notwithstanding Sanchez’s acquittal on the other charges.

       We turn to whether the jury should have been informed of the prior

acquittals. This court has previously found evidence of acquittals irrelevant. See

State v. Scott, No. 11-1128, 2012 WL 6193066, at *4 (Iowa Ct. App. Dec. 12,

2012); accord Prince v. Lockhart, 971 F.2d 118, 122 (8th Cir. 1992) (stating
                                        13


judgments of acquittal may be relevant to issues of double jeopardy and

collateral estoppel but are “not usually admissible to rebut inferences that may be

drawn from the evidence that was admitted,” and finding prior acquittal irrelevant

to present charge). Under the circumstances of this case, we see no reason to

chart a different course.   Specifically, because the State refused to inform the

third jury of any of the charges on which Sanchez was acquitted, we are not

faced with the introduction of “half-truth[s]” regarding prior charges.        See

Goodson, 516 N.W.2d at 34; State v. Aricivia, 495 N.W.2d 364, 367-68 (Iowa Ct.

App. 1992) (“Because the State introduced evidence surrounding the sexual

abuse charges, evidence of the subsequent dismissal was also very relevant.”).

We conclude the district court did not abuse its discretion in declining to give the

requested instruction. State v. Becker, 818 N.W.2d 135, 140 (Iowa 2012).

       We affirm Sanchez’s judgment and sentence for conspiracy to deliver a

controlled substance.

       AFFIRMED.
