Opinion
No. 1-1039 / 01-0132.
Filed April 24, 2002.
Appeal from the Iowa District Court for Polk County, ARTIS REIS, Judge.
David Bos appeals his convictions, following jury trial, for possession of a controlled substance with intent to deliver, failure to possess a drug tax stamp, and possession of a controlled substance (marijuana). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda Hines, Assistant Attorney General, John Sarcone, County Attorney, and Robert Diblasi, Assistant County Attorney, for appellee.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
David Bos appeals his convictions, following jury trial, for possession of a controlled substance with intent to deliver, failure to possess a drug tax stamp, and possession of a controlled substance (marijuana). Bos alleges the district court erred in allowing inadmissible hearsay evidence at trial. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS
On or about March 23, 2000 the Polk County sheriff's office received information from an anonymous caller that David Bos was dealing drugs out of a Freeman Decorating delivery truck. Based on this information, Sergeant Steven Stroup and detectives Dennis George and Lonnie Peterman went to 1000 Washington Street in Des Moines and confronted Bos. The officers spoke to Bos for some time at this address and ultimately secured consent from him to search the delivery truck he had been operating for his employer, Freeman Decorating. Bos's co-worker Steven Carpenter was sitting in the passenger seat of the delivery truck. Carpenter also gave police consent to search the truck.
Detective George initially went through the delivery truck with his drug detection dog and the dog alerted in two different places. Sergeant Stroup then followed up with a second search in which he recovered a cardboard tube from under the drivers seat containing a white, rock-like substance in a plastic baggie. This was ultimately determined to be a rock of methamphetamine. In a wooden compartment between the front seats Stroup also found a pair of gloves one of which contained a small gray bag. Inside the gray bag were two smaller plastic bags each containing one rock of a substance similar in appearance to the substance found in the cardboard tube. Also inside the wooden compartment police found a plastic baggie of marijuana. Bos was then arrested and taken into custody. Bos was found to be in possession of $320 in cash at that time.
Detective Peterman applied for and obtained a search warrant for Bos's residence. Upon searching the home the officers found a digital scale, another scale with what appeared to be methamphetamine residue on it, a spoon with apparent drug residue, a scanner, a list of codes used by law enforcement, a video camera, a new video monitoring camera, two televisions focusing on the outside of the residence, a baggie of marijuana in a purse in a closet, and a small plastic baggie with residue in it in a gym bag. All of these items were found in a bedroom which was believed to be Bos's room.
Bos was charged with possession of a controlled substance (methamphetamine) with intent to deliver (Count I), in violation of Iowa Code section 124.401(1)(b)(7) (1999), failure to possess or affix a drug tax stamp (Count II), in violation of sections 453B.3 and 453B.12, and possession of a controlled substance (marijuana) (Count III), in violation of section 124.401(5). Bos filed a motion to suppress the evidence discovered in the truck and in his home alleging his consent to the search of the truck was not voluntary and the items seized from his home were the fruits of the illegal search of the truck. Hearing was held on the motion and the court overruled it.
A jury trial was held. On direct examination at trial Sergeant Stroup, Detective Peterman and Detective George all testified they had received a tip from an anonymous caller that Bos was dealing drugs out of his employer's delivery van while making deliveries. Bos objected to the testimony as irrelevant and hearsay and the trial court overruled the objections. The jury found Bos guilty on all counts and Bos was sentenced to an indeterminate term of twenty-five years on Count I, an indeterminate term of five years on Count II, and a term of six months on Count III, with all sentences ordered to run consecutively. Bos appeals from these convictions and sentences.
II. SCOPE OF REVIEW
We review hearsay rulings for correction of errors at law. State v. Tangie, 616 N.W.2d 564, 568 (Iowa 2000); State v. Ross, 573 N.W.2d 906, 910 (Iowa 1998). This is because admission of hearsay evidence is prejudicial to the nonoffering party unless the contrary is shown. Ross, 573 N.W.2d at 910. "Admission of hearsay alone is not a valid ground for reversal in cases where the State upholds its burden of proving the challenged evidence did not impact upon the jury's verdict of guilt." State v. Rice, 543 N.W.2d 884, 887 (Iowa 1996). Bos objected to the challenged testimony through a pretrial motion and timely objections at trial.
III. MERITS
Bos contends the trial court erred in admitting the challenged testimony because it was inadmissible hearsay. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Iowa R. Evid. 5.801(c). Hearsay is not admissible except as provided by the Iowa Constitution, by statute, by the rules of evidence, or by other rules of the Iowa Supreme Court. Iowa R. Evid. 5.802. The State contends the testimony in question was not hearsay because its real purpose was not to prove the truth of the matter asserted, that Bos was dealing drugs from the delivery truck, but rather to explain the subsequent course of the investigation conducted by the officers.
To determine whether the evidence was offered for the truth of the matter asserted we must make an objective finding based on the facts and circumstances found in the record, of the real purpose for which the evidence was offered. State v. Deases, 518 N.W.2d 784, 792 (Iowa 1994); State v. Sowder, 394 N.W.2d 368, 371 (Iowa 1986). "Statements that otherwise would be considered hearsay, offered not for the purpose of proving the truth of the statements but rather offered to help explain relevant conduct taken in response to them, are not hearsay and are not excludable as such." State v. Hollins, 397 N.W.2d 701, 705 (Iowa 1986). Responsive conduct evidence is admissible over a hearsay objection if it explains the conduct itself and it is relevant to some aspect of the State's case. Id. at 705-06; see also State v. Mitchell, 450 N.W.2d 828, 832 (Iowa 1990); State v. Edgerly, 571 N.W.2d 25, 29 (Iowa Ct.App. 1997). The scope of such evidence is limited and should not go "beyond the point of merely explaining why certain responsive actions were taken by officers." State v. Doughty, 359 N.W.2d 439, 442 (Iowa 1984).
Bos alleges the testimony by the arresting officers regarding the anonymous tip that he was dealing drugs out of a delivery truck consisted of an out-of-court statement offered to prove the truth of the matter asserted. Bos asserts his defense at trial was that the drugs belonged to Carpenter or the men who had controlled the truck the previous day. Therefore, Bos argues the State used the challenged testimony to prove the drugs belonged to him and that he was the one selling them out of the truck. Bos further argues that the testimony exceeded the scope allowed for statements used to explain subsequent conduct, the evidence was irrelevant, and it was more prejudicial than probative.
The State argues the testimony regarding the specifics of the complaint was not offered to prove Bos was dealing drugs from his truck but rather was offered to explain why officers went to the truck and asked for consent to search it. The State further argues that even assuming the evidence was hearsay, was not relevant, and was more prejudicial than probative the admission of the testimony was harmless error because of the strength of the evidence against Bos, and that any potential prejudice from the admission of the evidence was mitigated by the court's cautionary instruction to the jury.
The part of the anonymous caller's complaint that identified a particular crime, drugs being dealt from a Freeman Decorating delivery truck, is relevant to explain conduct of the officers, a request to search the delivery truck. The part of the complaint that identified Bos as the person selling the drugs is of at least some relevance in explaining why the officers asked Bos for consent to search the truck. More importantly, the identification of Bos is highly relevant in explaining why, upon discovery of drugs in the truck, the officers sought and secured a warrant to search Bos's home rather than a warrant to search the residence of Bos's co-employee, Carpenter, or the residence of someone else associated with Freeman Decorating and the delivery truck. The State had the right at trial to fully develop the circumstances leading to the search of Bos's residence and the discovery there of the evidence implicating Bos in dealing drugs. See generally Hollins, 397 N.W.2d at 706. We conclude the challenged testimony was offered to explain the responsive conduct of the investigating officers, including not only their decision to search Bos's residence but also their decision to initially speak with Bos and seek his consent to search the van. The testimony was relevant to explain the officers' conduct and actions subsequent to receiving the complaint and therefore was not excludable as hearsay.
Bos further argues that even if this testimony was otherwise admissible as an explanation of subsequent conduct, it was more prejudicial than probative and should have been excluded based on its prejudicial nature alone. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Iowa R. Evid. 5.403.
We have serious doubts that error has been preserved for our review on this issue. See State v. Mark, 286 N.W.2d 396, 410 (Iowa 1980) (holding contention that probative value is outweighed by prejudicial effect is waived by objection asserting only that evidence is irrelevant and immaterial). Bos's pretrial objection to the testimony in question was grounded on claims that the testimony constituted "hearsay" and that it was "extremely prejudicial." During trial his objections were that the testimony was "irrelevant" and that it was "hearsay." At no point did he object to the evidence on the ground that it was more prejudicial than probative or that its probative value was substantially outweighed by the danger of unfair prejudice. We nevertheless pass this question of error preservation and address the merits of the claim.
For two somewhat interrelated reasons we conclude that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. First, the evidence against Bos, evidence of drug dealing found in his home, was very strong. Under such circumstances it is highly unlikely that Bos was prejudiced by evidence that was arguably merely cumulative to other evidence that was properly admitted. See State v. Holland, 485 N.W.2d 652, 656 (Iowa 1992) (stating prejudice cannot be shown because overwhelming evidence, although circumstantial, connected the defendant with the crime). Second, the trial court limited the jury's consideration of the challenged testimony with a cautionary instruction. The court instructed the jury that
Statements made by the police officers as to why they were called to 1000 Washington may not be used as evidence of guilt of defendant. The statements were allowed into evidence only to show why the police officers went to 1000 Washington and nothing more.
Cautionary instructions explaining the purpose of challenged evidence help to nullify the danger of unfair prejudice. See State v. Bayles, 551 N.W.2d 600, 608 (Iowa 1996). "Only in extreme cases will such a cautionary instruction be deemed insufficient to remove the danger of prejudice." State v. Conner, 314 N.W.2d 427, 429 (Iowa 1982). Based on the strength of the State's case against Bos we do not find this to be such an extreme case.
We conclude that the strength of the State's case together with the cautionary instruction prevented any danger that the probative value of the challenged testimony was substantially outweighed by the danger of unfair prejudice.
AFFIRMED.