IN THE COURT OF APPEALS OF IOWA

No. 14-2082

Filed December 9, 2015

STATE OF IOWA,

Plaintiff-Appellee,

vs.

ROBERT AYERS EATON JR.,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Jefferson County, Lucy J. Gamon, 

Judge.

Defendant appeals his convictions for possession of a controlled 

substance (marijuana) with intent to deliver and delivery of a controlled 

substance (marijuana). AFFIRMED.

Jeffrey L. Powell of The Law Office of Jeffrey L. Powell, Washington, for 

appellant.

Thomas J. Miller, Attorney General, and Alexandra Link, Assistant 

Attorney General, for appellee.

Considered by Vaitheswaran, P.J., Bower, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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SCOTT, Senior Judge.

Defendant Robert Eaton appeals his convictions for possession of a 

controlled substance (marijuana) with intent to deliver and delivery of a controlled 

substance (marijuana). We determine the State made a good faith effort to 

secure a witness for trial, but was unsuccessful, and the district court properly 

permitted the State to present the witness’s deposition testimony. We also 

determine there is sufficient evidence in the record to support Eaton’s conviction 

for delivery of marijuana. We affirm his convictions.

I. Background Facts & Proceedings

On August 20, 2013, Mincky Pasricha agreed to cooperate with officers 

from the Fairfield Police Department to purchase marijuana from Eaton. The 

officers searched Pasricha and placed a recording device on her.1 She was 

given $1000 cash. The officers had written down the serial numbers of the

money. The officers followed Pasricha to Eaton’s home and waited outside when 

she entered the home. Pasricha stated, “Then we did the transaction.” She 

stated she gave Eaton the $1000 and received a quarter pound of marijuana. 

She drove to the Fairfield Police Station, with the officers following, and turned in 

the marijuana.

Based on the controlled purchase of marijuana from Eaton, officers 

obtained a search warrant for his home. The officers found several baggies of 

marijuana, which had a combined weight of 74.4 grams. They seized $15,282 in 

cash. Eaton had $720 in his pocket that matched the serial numbers of the 

 

1 The recording device malfunctioned so there is no audio recording of the controlled 

purchase.
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money given to Pasricha for the controlled buy of marijuana. Officers also found 

a scale. A small sample of the substance seized was tested and was determined 

to be marijuana. Lieutenant Colin Smith, who was certified as a marijuana 

technician, testified the substance “was all looked at and all looked the same.”

Eaton was charged with possession of a controlled substance (marijuana) 

with intent to deliver, in violation of Iowa Code section 124.401(1)(d) (2013), and 

delivery of a controlled substance (marijuana), in violation of section 

124.401(1)(d). Defense counsel deposed Pasricha on May 1, 2014.

The trial was set for September 3, 2014. The State attempted to serve 

Pasricha with a subpoena nine days before the trial. Lieutenant Smith testified 

he was unable to serve her. Officers spoke to her neighbors and her supervisor 

at her place of employment. They learned she had traveled to North Carolina. 

They were unable to contact her by the telephone number they had for her. 

Lieutenant Smith obtained a different telephone number from her employer but 

was unable to leave a voice message because her voice mailbox was full. On 

two occasions he was able to leave a call back number. Pasricha did not 

respond to attempts to contact her. The prosecutor stated he had personally 

attempted to contact her three times.

The State filed a motion seeking a ruling that Pasricha was unavailable 

under Iowa Rule of Evidence 5.804 and asking that it be permitted to present her 

deposition. After a hearing the district court ruled:

Having determined that the State’s efforts to locate Ms. 

Pasricha were reasonable although unavailing, the Court further 

determines that she is legally unavailable for trial. Therefore, her 

prior deposition testimony may be read to the jury pursuant to the 
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“former testimony” exception to the hearsay rule, as enunciated in 

Iowa R. Evid. 5.804(b)(1).

The case proceeded to a jury trial. Evidence was presented as outlined 

above. The jury found Eaton guilty of possession of a controlled substance 

(marijuana) with intent to deliver and delivery of a controlled substance 

(marijuana). The district court denied Eaton’s motion for new trial and motion in 

arrest of judgment. He was sentenced to five years in prison on each charge, to 

be served concurrently. The sentences were suspended, and Eaton was placed 

on probation. He now appeals his convictions.

II. Deposition Testimony

Eaton contends the district court improperly determined Pasricha was 

legally unavailable to testify at his criminal trial. He claims the State did not 

engage in a good-faith effort to secure her presence. He asserts Pasricha was a 

very important witness and it was essential for the jury to evaluate her credibility. 

Eaton contends his inability to cross-examine Pasricha at his criminal trial 

violated his rights under the Confrontation Clause.

Challenges to evidence based on the hearsay rule are reviewed for the 

correction of errors at law. State v. Harper, 770 N.W.2d 316, 319 (Iowa 2009). 

Claims involving the Confrontation Clause are reviewed de novo. Id.

Iowa Rule of Evidence 5.804 provides:

a. Definition of unavailability. “Unavailability as a witness” 

includes situations in which the declarant:

. . . .

(5) Is absent from the trial or hearing and the proponent of a 

statement has been unable to procure the declarant’s attendance 

by process or other reasonable means.
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When a declarant is unavailable as a witness, the hearsay rule does not preclude 

the presentation of “a deposition taken in compliance with law in the course of 

the same or another proceeding if the party against whom the testimony is now 

offered, . . . had an opportunity and similar motive to develop the testimony by 

direct, cross, or redirect examination.” Iowa R. Evid. 5.804(b)(1); State v. Ray, 

516 N.W.2d 863, 866 (Iowa 1994).

There is an exception to the Confrontation Clause “for the testimony of an 

unavailable witness who previously testified against the same defendant and was 

subject to cross-examination.” State v. Kite, 513 N.W.2d 720, 721 (Iowa 1994) 

(citing Barber v. Page, 390 U.S. 719, 722 (1968) (noting “the right of crossexamination initially afforded provides substantial compliance with the purposes 

behind the confrontation requirement”)). Thus, the use of prior testimony under 

rule 5.804(b)(1) “does not violate the confrontation clause of the Sixth 

Amendment to the Federal Constitution if the prosecuting authority has made a 

reasonable effort to secure the witness’s presence.” State v. Murray, 512 

N.W.2d 547, 551 (Iowa 1994).

A witness is not considered “unavailable” “unless the prosecutorial 

authorities have made a good-faith effort to obtain his presence at trial.” Barber, 

390 U.S. at 725; see also State v. Holland, 389 N.W.2d 375, 379 (Iowa 1986). 

“The lengths to which the State must go to produce a witness is a question of 

reasonableness.” State v. Wells, 437 N.W.2d 575, 579 (Iowa 1989). “[D]ue 

diligence requires more than the issuance of a subpoena and the return of it not 

found.” State v. Dean, 332 N.W.2d 336, 338 (Iowa 1983). The State has the 
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burden to establish its good-faith efforts to secure the presence of a witness. 

State v. Zaehringer, 325 N.W.2d 754, 759 (Iowa 1982).

We find the State went to reasonable lengths to produce Pasricha for the 

trial. See Wells, 437 N.W.2d at 579. Once the prosecutor was reasonably 

certain Eaton’s trial would go forward as scheduled, nine days before the trial 

date, officers attempted to serve Pasricha with a subpoena. When their efforts 

were unsuccessful, Lieutenant Smith and the prosecutor attempted to call 

Pasricha but could not contact her. Officers also questioned Pasricha’s 

neighbors and her employment supervisor to attempt to discover her 

whereabouts. They learned she had gone to North Carolina for about two 

weeks. Lieutenant Smith obtained a different telephone number for Pasricha 

from her supervisor and attempted to call her several times at that number. He 

was able to leave a call back number, but Pasricha did not call him back.

We conclude the State met its burden to show it made good-faith efforts to 

secure the attendance of Pasricha at defendant’s criminal trial. We determine 

the district court properly found Pasricha was “unavailable” within the meaning of 

rule 5.804(a)(5). Defense counsel took Pasricha’s deposition and had “an 

opportunity and similar motive to develop the testimony” during the deposition, 

and therefore, it was admissible under rule 5.804(b)(1). Because Pasricha was 

unavailable, the use of her prior testimony under rule 5.804(b)(1) did not violate 

Eaton’s rights under the Confrontation Clause. See Murray, 512 N.W.2d at 551.

III. Sufficiency of the Evidence

Eaton claims there is not sufficient evidence in the record to support his 

conviction for delivery of a controlled substance (marijuana). This conviction is 
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based on the controlled purchase of marijuana by Pasricha from Eaton. He 

states there was no evidence the substance obtained in the controlled purchase

was tested or weighed. He points out that although Lieutenant Smith conducted 

a chemical test on a sample of the marijuana taken from his house during the 

execution of the search warrant, there was no evidence the substance obtained 

in the controlled purchase was tested.

We review claims challenging the sufficiency of the evidence in a criminal 

case for the correction of errors at law. State v. Dalton, 674 N.W.2d 111, 116 

(Iowa 2004). We will uphold the jury’s verdict when it is supported by substantial 

evidence. State v. Hagedorn, 679 N.W.2d 666, 668 (Iowa 2004). “Evidence is 

substantial if it would convince a rational fact finder that the defendant is guilty 

beyond a reasonable doubt.” State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005). 

We view the evidence in the light most favorable to the State, “including 

legitimate inferences and presumptions that may fairly be deduced from the 

record evidence.” State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005).

Pasricha agreed to cooperate with officers in purchasing a quarter pound 

of marijuana from Eaton. She was given $1000 in serialized bills. Pasricha’s 

person, purse, and car were searched both before and after the sale. She was 

followed both to and from Eaton’s home. Lieutenant Smith testified that when 

Pasricha returned to the police station she turned over a baggy of marijuana. 

Officer Joel Smith confirmed he saw a bag of marijuana on Lieutenant Smith’s 

desk after Pasricha returned to the station.

Lieutenant Smith had obtained a certificate from the Iowa Division of 

Criminal Investigation in marijuana identification. He stated only a portion of the 
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marijuana was tested because the chemicals needed for the test were 

expensive. He testified he did not test all of the other marijuana “[b]ecause they 

were all similar.” He also testified, “It was all looked at and all looked the same.”

“We have always recognized that, for a person to be convicted of a drug 

offense, the State is not required to test the purported drug.” State v. Brubaker, 

805 N.W.2d 164, 172 (Iowa 2011). “The finder of fact is free to use 

circumstantial evidence to find that the substance is an illegal drug.” Id. We 

determine there is substantial evidence in the record to support Eaton’s 

conviction for delivery of a controlled substance (marijuana). The evidence 

shows the substance purchased by Pasricha from Eaton at his home was 

marijuana.

We affirm Eaton’s convictions.

AFFIRMED.