STATE OF IOWA, Plaintiff-Appellee, vs. JAMES PHILLIP URBAN, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-522 / 08-0891
Filed August 6, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JAMES PHILLIP URBAN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Plymouth County, James D. Scott,
Judge.
Defendant appeals his conviction for unlawful possession of animal furs.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney
General, Darin J. Raymond, County Attorney, and Amy K. Oetken, Assistant
County Attorney, for appellee.
Considered by Vogel, P.J., and Vaitheswaran, J., and Beeghly, S.J.*
*Senior Judge assigned by order pursuant to Iowa Code section 602.9206
(2009).
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BEEGHLY, S.J.
I.
Background Facts & Proceedings
Conservation officers from the Iowa Department of Natural Resources
were suspicious that James Urban (Urban) was trapping animals without a
license.
The trapping of fur-bearing animals requires a fur harvester license
under Iowa Code section 483A.1 (2007). In December 2006 officers followed
Urban while he stopped on a seldom-used dirt road. After Urban left, officers
went to the same area and found a raccoon in a snare. The name on the snare
was Travis Urban (Travis), Urban’s son.
Officers obtained a search warrant for Urban’s home, which they executed
on January 20, 2007. Urban was the only person at the residence at the time of
the search warrant. Officers found hundreds of traps and snares, trapping lures,
and bait. They also found forty dead raccoons and one dead badger. 1 Some of
the traps and snares had Urban’s name on them, and some had Travis’s name
on them. A container with parts for snares was found in the same room as
Urban. On the kitchen countertop was a trap tag with Travis’s name, a lock for a
snare, some change, a comb, and Urban’s work ID card.
The officers found an envelope addressed to Urban from W & R Furs, a
fur dealer from Fairmont, Minnesota. There was a receipt dated December 23,
2006, with Travis’s name on the top, but with the notation on the bottom, “Jim
Forgot envelope so here is 250 will pay rest next Sat.”
1
Raccoons and badgers are fur-bearing animals as the term is used in chapters 481A
and 483A. Iowa Code § 481A.1(20).
3
Urban was charged with trapping without a license, fourth offense, in
violation of sections 481A.135 and 483A.1, and unlawful possession of animal
furs, fourth offense, in violation of sections 481A.38 and 481A.135.
Urban
stipulated that between September 2006 and January 2007 he did not have a
valid trapping license. Urban also admitted he had three previous convictions for
violating trapping laws.
The case proceeded to trial. The district court denied Urban’s motion for
judgment of acquittal. Travis testified that he had been living with his father. He
stated he had a trapping license, and the raccoons in the garage belonged to
him.
On cross-examination Travis admitted that he had previously told
conservation officers that he was not living with his dad. Dorothy Urban testified
she was married to Urban, but was living at a different place. She testified the
traps and snares at Urban’s home were owned by her and Urban, but Travis was
using them, and the raccoons were Travis’s. DuWayne Anderson, of W & R
Furs, testified he had not purchased furs from Urban during the relevant period of
time, but had purchased some from Travis. Anderson testified, however, that in
late 2006 Urban called him and asked him to pick up some furs from the home.
The jury returned a verdict finding Urban not guilty of trapping animals
without a valid license, and guilty of unlawful possession of animal furs. Urban
filed a motion for a new trial, claiming the jury’s verdict was not supported by the
evidence.
The district court denied the motion for new trial.
Urban was
sentenced to 365 days in jail, with all but 120 days suspended. He was placed
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on probation for a period of two years.
He was suspended from having a
trapping license for five years. Urban appeals his conviction.
II.
Sufficiency of the Evidence
Urban contends there is insufficient evidence in the record to show he
illegally possessed fur-bearing animals. He asserts he did not have exclusive
possession over the animal furs because Travis was using the garage to store
his furs and trapping materials. Urban claims the State did not adequately show
he had constructive possession of the animal furs.
We review challenges to the sufficiency of the evidence in a criminal case
for the correction of errors at law. State v. Heuser, 661 N.W.2d 157, 165 (Iowa
2003). A jury’s verdict will be upheld if it is supported by substantial evidence.
Id. at 165-66.
Substantial evidence means evidence that could convince a
rational fact finder that the defendant is guilty beyond a reasonable doubt. State
v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct. App. 1998). We view the evidence in
the light most favorable to the State. State v. Padavich, 536 N.W.2d 743, 751
(Iowa 1995).
In a crime involving possession of contraband, possession can be actual
as well as constructive. State v. Nickens, 644 N.W.2d 38, 41 (Iowa Ct. App.
2002). A person is considered to be in actual possession when the person “has
direct physical control of something on or around his person.” State v. Nitcher,
720 N.W.2d 547, 558 (Iowa 2006). Constructive possession occurs when the
person “has knowledge of the presence of something and has the authority or
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right to maintain control of it either alone or together with someone else.” State
v. Maghee, 573 N.W.2d 1, 10 (Iowa 1997) (citation omitted).
Constructive possession cannot be inferred from the defendant’s joint
possession of premises with others. State v. Bash, 670 N.W.2d 135, 138 (Iowa
2003). The State must present other evidence linking the defendant to the illegal
contraband. Id. When a defendant does not have exclusive possession of the
premises, the State must show “evidence establishing actual knowledge by the
accused, or evidence of incriminating statements or circumstances from which
the jury might lawfully infer knowledge by the accused of the presence of the
[items] on the premises.” State v. McDowell, 622 N.W.2d 305, 308 (Iowa 2001)
(citation omitted).
If the jury determined Urban was living in his home alone, it could find he
was in actual possession of the furs. There was contradictory evidence as to
whether Travis was living in the same home as Urban. The jury was free to
reject certain evidence and credit other evidence.
State v. Anderson, 517
N.W.2d 208, 211 (Iowa 1994). The jury could have rejected Travis’s testimony
that he was living with his father, and that the raccoons belonged to him.
On the other hand, even if the jury found Urban and Travis had joint
possession of the premises, there was sufficient evidence in the record to show
Urban had constructive possession of the animal furs. There was no evidence
the animal furs were hidden, and it is clear Urban would have knowledge of over
forty dead animal pelts in his garage. Furthermore, the envelope from W & R
Furs addressed to Urban and Urban’s telephone call to Anderson about picking
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up furs, shows his authority and right to maintain control over the animal furs.
We conclude there is substantial evidence in the record to show Urban had
constructive possession of the animal furs.
We conclude the district court did not err in denying Urban’s motion for
judgment of acquittal.
III.
Ineffective Assistance
Urban contends he received ineffective assistance because his trial
counsel failed to file a motion to adjudicate law points to determine what license
is required to possess furs. He asserts that while section 483A.1 provides for a
fur harvester license, there is no corresponding license under the Iowa Code for
the possession of the fur of a fur-bearing animal.
Urban claims there is no
specified license he could obtain to possess furs.
We review claims of ineffective assistance of counsel de novo. State v.
Bergmann, 600 N.W.2d 311, 313 (Iowa 1999). To establish a claim of ineffective
assistance of counsel, a defendant must show (1) the attorney failed to perform
an essential duty, and (2) prejudice resulted to the extent it denied defendant a
fair trial.
State v. Shanahan, 712 N.W.2d 121, 136 (Iowa 2006).
Absent
evidence to the contrary, we assume that the attorney’s conduct falls within the
wide range of reasonable professional assistance.
State v. Hepperle, 530
N.W.2d 735, 739 (Iowa 1995).
Section 481A.38 provides:
It is unlawful for a person to take, pursue, kill, trap or
ensnare, buy, sell, possess, transport, . . . any game, protected
nongame animals, fur-bearing animals or fur or skin of such
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animals, . . . except upon such terms, conditions, limitations and
restrictions set forth herein . . . .
(Emphasis added). Also, section 483A.1 provides:
Except as otherwise provided in this chapter, a person shall
not fish, trap, hunt, pursue, catch, kill, take in any manner, use,
have possession of, sell, or transport all or a part of any wild
animal, bird, game, or fish, the protection and regulation of which is
desirable for the conservation of resources of the state, without first
obtaining a license for that purpose and the payment of a fee as
follows:
(Emphasis added). Thereafter follows a list of the types of licenses available in
Iowa, including a fur harvester license and a fur dealer license.
Under the Iowa statutory scheme, a person may not possess the fur of a
fur-bearing animal taken from the wild, such as a raccoon or badger, without a
license. See Iowa Code §§ 481A.38, 483A.1. The only licenses that pertain to
the possession of animal furs are the fur harvester license and the fur dealer
license. It therefore follows that a person must have one of these licenses in
order to possess the fur of a fur-bearing animal. Urban did not have either type
of license.
We conclude Urban has not shown he received ineffective assistance due
to his counsel’s failure to file a motion to adjudicate law points to determine what
type of license would be needed to possess the fur of a fur-bearing animal.
We affirm Urban’s conviction.
AFFIRMED.
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