Opinion
No. 2-1044 / 02-0856.
Filed May 29, 2003.
Appeal from the Iowa District Court for Woodbury County, JOHN D. ACKERMAN, Judge.
Applicant-appellant Roosevelt Scott appeals the decision of the district court dismissing his application for postconviction relief on summary judgment, following a jury verdict finding him guilty of possession of a firearm as a felon, habitual offender, in violation of Iowa Code sections 724.26 and 902.8 (1997). REVERSED AND REMANDED.
Martha McMinn, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Roxann Ryan, Assistant Attorney General, Thomas Mullin, County Attorney, and Bridget Barnes, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Applicant-appellant Roosevelt Scott appeals the decision of the district court dismissing his application for postconviction relief on summary judgment, following a jury verdict finding him guilty of possession of a firearm as a felon, habitual offender, in violation of Iowa Code sections 724.26 and 902.8 (1997). At trial Scott's attorney did not object to jury instructions defining "possession" rather than the current standard of "dominion and control." Following Scott's petition for postconviction relief, the district court dismissed the case on summary judgment, concluding Scott would be unable to show prejudice as a result of his attorney's failure to object to the possession instruction because "possession" was the same as "dominion and control." We reverse and remand to the district court for further postconviction proceedings.
I. BACKGROUND FACTS AND PROCEEDINGS
On June 27, 1998 Sioux City Police Officers David Jensen and Judy Kellen responded to a report of a burglary at an apartment located at 407 13th Street, Apartment 3, in Sioux City. Both Officers Jensen and Kellen testified that upon arriving, Scott and his girlfriend, Teresa Krisl, were in the apartment. The officers testified they were invited into the apartment, where they sat on the couch to discuss the burglary. Officer Kellen testified Scott listed some of the items taken in the burglary, such as electronic appliances and an air conditioner, and that he identified them as his. Officer Jensen testified he recognized Scott as a felon and asked if he had any handguns or weapons in the apartment. Officer Jensen testified Scott responded he did have a .32 caliber revolver in the bedroom. Officer Jensen then asked, "Can I see it?" Scott responded by walking into a bedroom, and returning with an unloaded gun. During the time Scott was in the bedroom, Officer Jensen said he heard what he believed was Scott unloading the revolver. The door remained about halfway open while Scott was in the bedroom, and Officer Jensen could only see the corner of Scott's shoulder. Officer Jensen testified he then asked where the bullets were, Krisl responded they were out in the car, and Scott stated, "Yeah, I got bullets." Officer Jensen then confirmed Scott was a convicted felon and asked him how he had obtained the gun. Officer Jensen testified Scott claimed he had received it from Todd Babb, Krisl's brother. Officer Jensen further testified Krisl was not there at the time, that she had left the apartment to speak with her sister outside. When Krisl re-entered the apartment, Officer Jensen testified he asked her who the gun had come from. She initially responded it had not come from Babb, but then later stated she had no knowledge Scott even had the gun.
Testimony from Scott and from Krisl indicated, contrary to the officers' claims, that Krisl was taking a shower when the officers arrived. In response to the officers' inquiry about the presence of a weapon, Scott answered that he did not own a gun but would inquire if Krisl did. Scott claimed he then went into the bedroom to ask about a gun. Krisl responded that she had one and handed it to Scott to give to the officers. Krisl also testified she had purchased the gun for herself from her brother, who had obtained it through a friend of his named Sharon. Krisl testified she had falsely told the officers she did not know anything about the gun because she was upset at the time.
There was also conflicting testimony as to whether 407 13th Street, Apartment 3, was Scott's residence. Both parties stipulated to the fact that Krisl was the only person on the lease for the apartment. The State offered exhibits to indicate Scott nevertheless lived in the apartment, including affidavits and Scott's driver's license, where the Sioux City address was listed as his. Scott claimed to the contrary that he stayed overnight at the residence on occasion only, that his actual address was in Kiron, Iowa, where he received his mail, and that he had used the Sioux City address for his driver's license and other documents to indicate where the burglary had occurred and for other convenience purposes.
Documents indicating Scott lived at the Sioux City address include a financial affidavit, filled out and signed by Scott; a written arraignment, filled out by Scott's attorney and signed by Scott; a witness statement filled out by Scott; witness statements from Bobby Burk and Soumoutha Menoroth, filled out by Scott; and Scott's driver's license.
The jury found Scott guilty of possession of a firearm as a felon, in violation of section 724.26. Section 724.26 provides as follows:
A person who is convicted of a felony in a state or federal court, or who is adjudicated delinquent on the basis of conduct that would constitute a felony if committed by an adult, and who knowingly has under the person's dominion and control, receives, or transports or causes to be transported a firearm or offensive weapon is guilty of a class "D" felony.
Prior to the 1990 amendments, when "dominion and control" was substituted for "possession," among other changes, section 724.26 had stated:
Any person who is convicted of a felony in any state or federal court and who subsequently possesses, receives, or transports or causes to be transported a firearm or offensive weapon is guilty of an aggravated misdemeanor.
Uniform jury instructions reflecting the pre-1990 definition for felon in possession of a firearm were read to the jury in this case. Those instructions were as follows:
The state must prove the following elements of being a Felon in Possession of a Firearm:
1. On or about the 27th day of June, 1998, the defendant knowingly or intentionally possessed a firearm.
2. The defendant was previously convicted of a felony.
If the state proved both of these elements, the defendant is guilty of being a Felon in Possession of a Firearm.
If the state has failed to prove either of these elements, the defendant is not guilty.
The word "possession" includes actual as well as constructive possession, and also sole as well as joint possession.
A person who has direct physical control of something on or around his person is in actual possession of it.
A person who is not in actual possession, but who has knowledge of the presence of something and has the authority or right to maintain control of it either alone or together with someone else, is in constructive possession of it.
Current jury instructions reflecting the current wording of section 724.26 read as follows:
The State must prove both of the following elements of [Receipt] [Transportation] [Dominion And Control] Of [Firearm] [Offensive Weapon] By a Felon:
1. On or about the ____day of ___, 19__, the defendant knowingly [received] [transported] [caused to be transported] [had under [his] [her] dominion and control] a [firearm] [offensive weapon].
2. The defendant was previously convicted of (name of felony).
If the State proved both of the elements, the defendant is guilty of [Receipt] [Transportation] [Dominion And Control] Of [Firearm] [Offensive Weapon] By A Felon. If the State has failed to prove either of the elements, the defendant is not guilty.
II Iowa Crim. Jury Instructions 2400.7 (1990).
"Dominion and control" means ownership or right to the [firearm] [offensive weapon] and the power or authority to manage, regulate or oversee its use.
II Iowa Crim. Jury Instructions 2400.9 (1990).
In postconviction proceedings Scott argued his counsel rendered ineffective assistance for failing to object to the outdated "possession" jury instructions. In dismissing Scott's claim on summary judgment the district court concluded he could show no prejudice on his ineffective assistance claim, as the "possession" definition was essentially the same as the "dominion and control" definition. The court reasoned that the supreme court used these definitions interchangeably in discussing section 724.26, and it was therefore the trial court's discretion to use either the "possession" instruction or the "dominion and control" instruction.
On appeal Scott argues these standards are distinct, as the "possession" standard, which includes "constructive possession," only requires a showing of defendant's connection to the premises where a particular weapon is found, whereas the stricter "dominion and control" standard requires a showing of defendant's ties to the weapon itself rather than merely to the premises where the weapon was found.
II. SCOPE OF REVIEW
Postconviction proceedings are law actions ordinarily reviewed for errors of law. Bugley v. State, 596 N.W.2d 893, 895 (Iowa 1999); Carter v. State, 537 N.W.2d 715, 716 (Iowa 1995). When summary judgment is granted in a postconviction relief action, we examine the record to determine if a genuine issue of fact exists and whether the moving party is entitled to a judgment as a matter of law. Bugley, 596 N.W.2d at 895. Summary disposition of a postconviction relief application is not proper if a material issue of fact exists. Earnest v. State, 508 N.W.2d 630, 632 (Iowa 1993). Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Iowa R.Civ.P. 1.981(3). In ruling on a summary judgment motion, the court must look at the facts in a light most favorable to the party resisting the motion. Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000). The court must also consider on behalf of the nonmoving party every legitimate inference that can be reasonably deduced from the record. Id. If reasonable minds may differ on the resolution of an issue, a genuine issue of material fact exists. Swartzendruber v. Schimmel, 613 N.W.2d 646, 649 (Iowa 2000).
III. ANALYSIS
In preserving this claim for postconviction relief, the Iowa Supreme Court made the following statements:
Scott argues dominion and control under section 724.26 requires ownership or directorial type of control of the firearm, and it was fundamentally unfair to try him under a simple possession standard. . . .
The record in this case is insufficient for us to address Scott's claim on direct appeal. In order to allow Scott's counsel to explain his trial decisions, we affirm Scott's conviction and sentence but preserve his ineffective-assistance-of-counsel claim for a possible postconviction relief action. . . .State v. Scott, No. 99-500 (Iowa April 3, 2000).
Scott's argument, which the above statements by the supreme court would seem to endorse, is that the "dominion and control" standard is not equivalent to the "possession" standard, and failing to hold the jury to the stricter "dominion and control" standard prejudiced him.
We conclude the district court erred in concluding as a matter of law that "possession" and "dominion and control," sometimes used interchangeably, were sufficiently similar standards in this case such that the substitution of "possession" for "dominion and control" in the jury instructions would not possibly have prejudiced Scott.
In this case testimony supported two distinct stories regarding the gun which Scott handed to the police. The officers' story is that upon recognizing Scott as a felon and asking if he had any handguns or weapons in the apartment, Scott stated he did have a .32 caliber revolver in the bedroom. Officer Jensen asked, "Can I see it?", and Scott responded by walking into a bedroom and returning with the unloaded gun.
Scott's story, in contrast, is that in response to the officers' inquiry about the presence of a weapon, he answered that he did not own a gun but would inquire if Krisl did. Krisl then told Scott she did have a gun and handed it to him to give to the officers.
We recognize that "possession" and "dominion and control" are often considered equivalent concepts. See State v. Turner, 630 N.W.2d 601 (Iowa 2001). It is indisputable that these terms are used interchangeably in various legal analyses. But because this is a case where the jury convicted Scott based upon its lay interpretation of what was later determined to be the wrong instruction, this case should not turn on a complicated legal analysis. A plain reading of the jury instructions shows a demonstrable difference between the "possession" and "dominion and control" standards, and the supreme court even recognized this difference in preserving this case for further review. We conclude those differences cannot now be disregarded because the supreme court, in cases not involving jury instructions, has previously used the "possession" and "dominion and control" terms interchangeably.
Significantly, unlike in Turner, in this case Scott claimed he did not know of any weapon inside the apartment. Furthermore, in cases such as, among others, State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002) and State v. Reeves, 209 N.W.2d 18, 21 (Iowa 1973), where these terms are used interchangeably, "dominion and control" over an item is assumed once possession is established. In this case, in contrast, we cannot assume "dominion and control" necessarily accompanies "possession." Scott's story at trial was that he merely transferred the gun from Krisl, who owned the gun, to the officers requesting he bring it to them. Although by holding the gun in his hands he would have "possessed" the gun under the plain definition of "possession" in the jury instructions, Scott would not conclusively have had "dominion and control" over it, as the jury definition for "dominion and control" requires a showing of "ownership" or "right" to a particular piece of property and the "authority or power" to "manage, regulate, or oversee its use." Scott testified he did not own or have a right to the gun, that it was his girlfriend Krisl's. If the jury had believed Scott was a visitor at Krisl's apartment and that she owned the gun and handed it to him to give to the police in response to their request, under a common understanding of "right" and "ownership," the jury likely would have concluded Scott did not exercise "dominion and control" over the gun, even if he had briefly possessed it while turning it over to the police. We conclude that in a scenario such as this, "possession" is necessarily a different standard than "dominion and control."
We conclude this postconviction appeal should have been addressed on the merits and accordingly reverse the trial court's summary judgment and remand to the trial court for further postconviction proceedings.