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IN THE COURT OF APPEALS OF IOWA No. 1-205 / 10-0995 Filed May 25, 2011

STATE OF IOWA, Plaintiff-Appellee, vs. LUCAS DANIEL LUCK, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.

Lucas Daniel Luck appeals his conviction for possession of a firearm as a felon. REVERSED.

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.

2 DANILSON, J. 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 mi ght be hiding stuff somewhere inside the car." Officer Brandt approached the driver's side and made contact with the driver, Willie Phillips. Officer Sullivan

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."

3 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

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 front seat. 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

4 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 appeals. 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 (Iowa 2006). 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.

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5 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

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