IN THE COURT OF APPEALS OF IOWA
No. 1-205 / 10-0995
Filed May 25, 2011
STATE OF IOWA,
LUCAS DANIEL LUCK,
Appeal from the Iowa District Court for Black Hawk County, George L.
Lucas Daniel Luck appeals his conviction for possession of a firearm as a
Mark C. Smith, State Appellate Defender, and Robert Ranschau, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Trout, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Brad Walz, Assistant
County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Eisenhauer and Danilson, JJ.
Tabor, J., takes no part.
Lucas Daniel Luck appeals from his conviction for the offense of
possession of a firearm as a felon, in violation of Iowa Code section 724.26
(2009). He contends there was insufficient evidence to support his conviction
and the district court erred in applying the wrong standard and in failing to grant
his motion for a new trial. Considering the facts and circumstances of this case,
we find Luck’s movements after the traffic stop and proximity to the firearm
insufficient to prove beyond a reasonable doubt he had control or dominion over
the firearm. We reverse the district court’s judgment of conviction and sentence.
Our disposition of the case renders it unnecessary to address Luck’s claim in
regard to the district court’s ruling on his motion for a new trial.
I. Background Facts and Proceedings.
The facts viewed most favorably to the State include the following: At
approximately 2:50 a.m. on November 6, 2009, Waterloo Police Officers Dustin
Brandt and Jamie Sullivan initiated a traffic stop in downtown Waterloo on a 1999
Buick Regal with a faulty brake light. The officers noticed three passengers in
the vehicle and saw they “were moving around quite a bit . . . like they might be
hiding stuff somewhere inside the car.” Officer Brandt approached the driver’s
side and made contact with the driver, Willie Phillips.
approached the passenger’s side and observed Lakahia Rocket-Johnson in the
front passenger seat and Luck alone in the backseat. Officer Sullivan noticed
Luck appeared to be “very nervous” and “wouldn’t make eye contact” with him.
He further observed that Luck kept “looking around” and “fidgeting around.”
Officer Brandt asked Phillips to get out of the vehicle so he could show
him the defective brake light. Phillips told Officer Brandt the vehicle belonged to
Rocket-Johnson. Officer Brandt asked Rocket-Johnson for permission to search
the vehicle, which she granted.
As she exited the vehicle, Officer Sullivan
noticed a weapon, a .410 caliber shotgun, between the front seats and yelled,
“Gun, gun.” At that point, Phillips fled the scene on foot.
In the meantime, Officer Shawn Monroe and K-9 Officer Albert Bovy along
with K-9 Spike, responded to assist with a search of the vehicle.
Monroe, Bovy, and K-9 Spike pursued Phillips.
Officers Sullivan and Brandt
remained at the scene with Rocket-Johnson and Luck. They asked Luck to exit
the vehicle, and when he did, the officers observed another weapon, a .22 caliber
rifle, “laying across the floorboard” of the backseat, which they were unable to
observe until Luck exited the vehicle. Officer Sullivan retrieved the weapon from
the backseat floorboard. He was “pretty certain” the gun was “not covered at all,”
but Officer Brandt thought was covered by a coat or possibly a blanket.
The guns were placed on the hood of the vehicle to check for ammunition.
Officer Brandt unloaded the rifle; the shotgun was not loaded. Several minutes
later, the guns were returned to the interior of the vehicle for photographs.
Apparently, the guns were switched during this staging, as the .410 caliber
shotgun was placed in the backseat and the .22 caliber rifle was placed in the
K-9 Spike apprehended Phillips several blocks from the vehicle. Phillips
tried to swallow a small plastic bag as Officer Monroe tried to place handcuffs on
him. Officer Monroe tased Phillips, and he spit out the plastic bag, containing
five separately wrapped packages of cocaine. Officers searched the vehicle and
found a box of plastic storage bags in the backseat behind the driver’s seat, a
scale, and a plastic bag containing crack cocaine. Officers found more cocaine
on the floorboard of the driver’s seat.
The State charged Luck by trial information with possession of a firearm
as a felon.1 Luck filed a written arraignment and entered a plea of not guilty. A
jury trial began on February 16, 2010.
At the close of the evidence, Luck
stipulated to his prior felony convictions (an October 1999 conviction for theft and
four drug-related felonies from October 2002). The jury found Luck guilty of
possession of a firearm as a felon. On June 7, 2010, following a hearing, the
district court sentenced Luck to an indeterminate term of incarceration not to
exceed fifteen years and imposed a three-year minimum sentence. Luck now
II. Scope and Standard of Review.
A challenge to the sufficiency of the evidence is reviewed for corrections
of errors at law. Iowa R. App. P. 6.907; State v. Keeton, 710 N.W.2d 531, 532
In reviewing challenges to the sufficiency of the evidence
supporting a guilty verdict, we consider all of the evidence in the record in the
light most favorable to the State and make all reasonable inferences that may
fairly be drawn from the evidence. Keeton, 710 N.W.2d at 532. A jury’s verdict is
binding on appeal if it is supported by substantial evidence. State v. Hutchison,
721 N.W.2d 776, 780 (Iowa 2006). Evidence is substantial when a reasonable
Phillips was a codefendant charged with possession with intent to deliver and
possession of a firearm as a felon, but is not a party to this appeal.
mind would recognize it sufficient to reach the same findings.
Moorehead, 699 N.W.2d 667, 671 (Iowa 2005).
III. Sufficiency of the Evidence.
Luck argues there was insufficient evidence to support his conviction. The
State was required to prove beyond a reasonable doubt both elements of
possession of a firearm as a felon: Luck (1) knowingly possessed or exercised
dominion or control of a firearm2 and (2) was previously convicted of a felony.
Iowa Code § 724.26. Luck stipulated to the second element.
Luck contends there was insufficient evidence to prove that he “knowingly
possessed” or had “dominion or control” over either of the weapons found in the
vehicle. He argues “there was testimony that both the weapons were covered”
and “[t]he exact location of the weapons is unknown as the weapons were
removed from the car and then replaced in the wrong locations before
photographs were taken.” He further points out he was not the owner of the
vehicle and there was no testimony when he entered the vehicle, which may
have been “just seconds prior to the car being stopped by the police.”
Possession of a firearm can be actual or constructive. State v. Eickelberg,
574 N.W.2d 1, 3 (Iowa 1997). A defendant has actual possession of a firearm if
he or she has “direct physical control” over the firearm. See State v. Cashen,
666 N.W.2d 566, 569 (Iowa 2003); Eickelberg, 574 N.W.2d at 3. Possession is
constructive when the defendant has knowledge of the presence of the firearm
and maintains dominion and control of the place where the firearm was found.
The jury was instructed that “dominion and control” means “ownership or right
to the firearm and the power or authority to manage, regulate, or oversee its use.”
State v. Atkinson, 620 N.W.2d 1, 3 (Iowa 2000).
“This is a constructive-
possession case; actual possession requires [the item] to be found on the
defendant’s person, and that was not the case here.” Id.; see also Cashen, 666
N.W.2d at 569; Eickelberg, 574 N.W.2d at 3.
As a guide in determining whether a defendant had constructive
possession, we consider a number of factors, including incriminating statements
made by the defendant; incriminating actions of the defendant upon the police’s
discovery of contraband among or near the defendant’s personal belongings; the
defendant’s fingerprints; and any other circumstances linking the defendant to
the contraband. Cashen, 666 N.W.2d at 571.
Even if some of these facts are present, we are still required to
determine whether all of the facts and circumstances, including
those not listed above, allow a reasonable inference that the
defendant knew of the [contraband’s] presence and had control and
dominion over the contraband.
Id.; State v. Webb, 648 N.W.2d 72, 79 (Iowa 2002) (observing the peculiar facts
and circumstances of each case determine whether the defendant had
constructive possession of the contraband).
In this case, Luck, along with two other people, was present in the vehicle
where the firearms were found.
Therefore, Luck “was not in the exclusive
possession of the premises—the car.” Cashen, 666 N.W.2d at 571. In situations
where the defendant is in joint possession of the premises, knowledge and the
ability to maintain control or dominion over the contraband will not be inferred.
As our supreme court has instructed:
If the premises on which such substances are found are in the
exclusive possession of the accused, knowledge of their presence
on such premises coupled with his ability to maintain control over
such substances may be inferred . . . . But where the accused has
not been in exclusive possession of the premises but only in joint
possession, knowledge of the presence of the substances on the
premises and the ability to maintain control over them by the
accused will not be inferred but must be established by proof. Such
proof may consist either of evidence establishing actual knowledge
by the accused, or evidence of incriminating statements or
circumstances from which a jury might lawfully infer knowledge by
the accused of the presence of the substances on the premises.
State v. Reeves, 209 N.W.2d 18, 23 (Iowa 1973), quoted with approval in
Cashen, 666 N.W.2d at 570; State v. McDowell, 622 N.W.2d 305, 308 (Iowa
Luck was the only passenger in the back seat with the .22 caliber rifle, so
he had access to the place where that firearm was found. Cashen, 666 N.W.2d
However, “[p]roof of opportunity of access to a place where
[contrabands] are found will not, without more, support a finding of unlawful
possession.” Reeves, 209 N.W.2d at 22. The State was required to introduce
other evidence that proved Luck’s knowledge of the firearm and his authority or
right to maintain control of it. See Cashen, 666 N.W.2d at 571.
The State contends Luck had knowledge the gun was in the back seat
because he was “nervous” and “appeared disturbed by the officers’ presence
around the vehicle.” The State further asserts, “[t]he jury could have reasonably
found that when Luck was moving around in the vehicle after the stop, he was
trying to hide the weapon.” The State argues Luck had dominion or control of the
firearm “because he was the only person in the back seat and the .22 caliber rifle
was found where he had been sitting.” As the State contends, “Luck had the
easiest and most direct access” to the weapon, and “[s]ome part of his body must
have literally been in contact with the loaded weapon.”
However, the officers’ testimony concerning the movement of the
occupants of the vehicle, Luck’s demeanor, and Luck’s access to the gun was
the only evidence offered by the State relevant to the questions of knowledge
and control and dominion to support the charge. But see State v. Carter, 696
N.W.2d 31, 40 (Iowa 2005) (finding driver defendant was in constructive
possession of controlled substances found in console of vehicle when defendant
did not immediately stop the vehicle but instead veered across several lanes of
traffic while his head was down and struck the curb while attention was focused
on console; defendant exited vehicle while engine was still running and officer
believed they would have to chase him on foot; and defendant appeared nervous
and gave false name when asked for identification). We are unable to find this
evidence is sufficient to support a finding that Luck was in constructive
possession of the weapon discovered on the floorboard of the backseat.
Officer Brandt recalled that Officer Sullivan pointed out to him that after
the stop, the occupants in the vehicle were moving around “like they may be
hiding stuff somewhere inside the vehicle.” However, Officer Brandt could not
recall any specific movements by Luck nor did Officer Sullivan identify any
specific movement by Luck. None of the occupants made any admissions or
claimed the drugs and firearms were possessions of the other two. There was
also no suspicious behavior by Luck when he was asked to exit the vehicle, any
claim that Luck lied to the officers, and there was no ammunition found near or
on Luck. See State v. Garcia, 116 P.3d 72, 76 (N.M. 2005) (concluding backseat
defendant was in constructive possession of firearm found on floor of vehicle
when defendant had placed his beer bottle under the seat in a position right next
to the gun, such that it would be hard for anyone not to be aware of the gun; that
upon getting out of the car, defendant acted in a manner that arguably showed a
consciousness of guilt; and that defendant had been sitting on the ammunition
clip that matched the gun); Gamble v. State, 105 S.W.3d 801, 803-04 (Ark. Ct.
App. 2003) (finding backseat defendant was in constructive possession of firearm
found underneath seat when defendant gave several different dates of birth and
repeatedly gave a false name when officers attempted to determine his identity;
and repeatedly bent over in his seat during driver’s attempt to evade officers).
Here, Luck was not the owner of the vehicle.
There were three
passengers, but only two guns were found. See Hoffman v. State, 520 N.E.2d
436, 438 (Ind. 1988) (retrieving weapons under each of the seats of three
occupants in vehicle created inference that each man was armed and each
discarded the weapon under the seat at the time the officers required them to
leave the vehicle). There was no testimony Luck had any motive to have a
weapon on him. See In re F.T.J., 578 A.2d 1161, 1161 (D.C. 1990), abrogated
by Rivas v. United States, 783 A.2d 125 (D.C. 2001) (observing defendant
testified he had been shot a month earlier and therefore “had a motive to have
some weapons on him”).
Further, the gun on the backseat floorboard was not in plain view. The
vehicle was stopped when it was dark and officers needed to use a flashlight to
search the car. See In re M.I.W., 667 A.2d 573, 576 (D.C. 1995) (noting officer’s
use of flashlight to search vehicle stopped at night created inference that
passenger could not see firearm on floorboard).
whether the car had a functional interior light. See id.
There was no testimony
The gun was not found with Luck’s personal effects. In fact, Officer Brandt
testified the weapon “was covered by either a coat or blanket.” The photographs
taken at the scene depict the handle of the gun was pointing away from where
Luck was sitting. There was a bulky base to a child’s car seat between the gun’s
handle and Luck.
Further, the photographs depict the wrong gun in the
backseat, because the guns were switched when the officers tried to reconstruct
the original location of the guns. And significantly, the officers did not track the
guns’ serial numbers or fingerprint either gun. See People v. Bailey, 776 N.E.2d
824, 828 (Ill. App. Ct. 2002).
There was no testimony as to when Luck entered the vehicle. But see
F.T.J., 578 A.2d at 1161 (observing defendant was in the car for fifteen or twenty
minutes and at some point “would have, virtually, kicked the machine gun” found
with him in the backseat). Luck was not charged with possession of cocaine,
even though some cocaine was located on the backseat floorboard near the
weapon. When the vehicle was stopped, the driver ran, but not Luck. State v.
Haskins, 316 N.W.2d 679, 681 (Iowa 1982) (“An inference of guilt may be drawn
from flight for the purpose of avoiding or retarding prosecution.”). The driver’s
flight may be an inference of guilt of possession of drugs or possession of
firearms, or both. Id. Further, none of the passengers in the vehicle, including
Luck, testified at trial. Therefore, there were no admissions by Luck or the other
Upon our review of all the evidence in the record in the light most
favorable to the State, and making all reasonable inferences that may fairly be
drawn from the evidence, we are unable to conclude substantial evidence
supports the jury’s verdict in this case. “A jury is free to believe or disbelieve any
testimony as it chooses and to give as much weight to the evidence as, in its
judgment, such evidence should receive.” State v. Liggins, 557 N.W.2d 263, 269
(Iowa 1996). However, even if we infer knowledge from the facts of this case,
Luck’s proximity to the firearm is insufficient to prove control and dominion.
Atkinson, 620 N.W.2d at 3-4; see also Cashen, 666 N.W.2d at 572 (“We do not
presume possession where the defendant does not own the car and a finding of
constructive possession cannot rest on mere proximity.”).
This evidence was insufficient to support the conviction of possession of a
firearm as a felon. Considering the facts and circumstances, Luck’s proximity is
insufficient to prove beyond a reasonable doubt he had control or dominion over
the firearm. We therefore reverse the district court’s judgment of conviction and
sentence. Our disposition of the case renders it unnecessary to address Luck’s
claim in regard to the district court’s ruling on his motion for a new trial.