                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0207
                             Filed February 8, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROBERT DEAN AHART,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.



      A defendant appeals the firearm enhancement applied to his multiple

drug-related convictions resulting in an indeterminate fifty-year prison sentence.

JUDGMENT REVERSED IN PART; REMANDED FOR RESENTENCING.



      David C. Shinkle of Shinkle & Lynch, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant

Attorney General, for appellee.



      Considered by Vogel, P.J., and Tabor and Mullins, JJ.
                                            2


TABOR, Judge.

       The fighting issue in this appeal is whether the firearm enhancement

under Iowa Code section 124.401(1)(e) (2015) was properly applied to double

Robert Ahart’s drug-delivery sentence—from twenty-five to fifty years.          Ahart

contends the district court erred in submitting the issue to the jury, in not granting

a new trial based on the jury’s determination he was in “immediate possession or

control” of a firearm while committing his drug offenses, and in not granting a

mistrial based on the prosecutor’s rebuttal closing argument misinterpreting the

instructions on conspiracy and immediate control of the firearm.

       Because the firearm was not in plain view and Ahart did not have

exclusive control over the residence from which he was dealing drugs, the State

was required to offer evidence establishing his actual knowledge of the firearm’s

existence and location or circumstances from which a jury could reasonably infer

his knowledge.    Finding the State did not offer substantial evidence to show

Ahart knew about the firearm’s presence, we reverse the judgment in part and

remand     for   resentencing     without       the   penalty   enhancement    under

section 124.401(1)(e).

   I. Facts and Prior Proceedings

       At trial, the State offered evidence that Ahart and his girlfriend, Mara

Lubavs-Martin, operated a large-scale drug-dealing operation out of their Des

Moines residence.      Law enforcement surveilled the house on at least ten

occasions and saw people coming and going on a regular basis. Officers from

the Mid-Iowa Narcotics Enforcement and the Drug Enforcement Administration

task forces executed a search warrant at that house in early April 2015.
                                             3


       After entering, officers secured Ahart and Lubavs-Martin in the kitchen on

the main floor while fellow officers searched three other levels of the house.

Searchers found $190 in one pocket of Ahart’s pants and $1354 in another

pocket. In Ahart’s wallet, they found drug notes listing customers who owed

money and those who had paid.             Searchers also found a baggie of crystal

methamphetamine, $600 in cash, and drug notes in Lubavs-Martin’s purse.

       Upstairs from the kitchen were two bedrooms. In the master bedroom, the

searchers found drug ledgers under a chest of drawers. In what appeared to be

a spare bedroom, officers found a small safe on a closet shelf. Inside the locked

safe, searchers found nearly $8000 in cash and thirteen Ziploc® baggies

containing methamphetamine, as well as a checkbook belonging to Ahart. Also

in the safe, searchers found prescription drugs, including thirty-eight clonazepam

pills, twenty-two hydrocodone pills, and 141 hydromorphone pills.

       Downstairs, about ten to fifteen yards from the kitchen, the officers

searched a small living-room area. Amidst the clutter, they found a glass pipe

used for smoking methamphetamine and a measuring cup containing

methamphetamine residue. On the floor near that pipe, officers found a white

cloth knee brace; wrapped inside the knee brace was a black drawstring bag

containing a .25 caliber pistol.       The firearm was unloaded, its firing pin was

broken, and the serial number was scratched off.1                Searchers also located

“paperwork and a checkbook”—marked as State’s Exhibit No. 11—on one of the


1
  The DCI criminalist was able to test fire the pistol only after replacing the broken firing
pin with a donor pin from its collection. The criminalist also was able to recover the
obliterated serial number but did not determine the gun’s ownership. The lab was not
asked to test the firearm for fingerprints.
                                          4


tables “down in the same vicinity of the firearm.” The paperwork was a March

2015 credit-card statement addressed to Ahart. Exhibit No. 11 also contained a

letter sent from the clerk of court to Katrina Saylor, a recent visitor to Ahart’s

residence, at a different Des Moines address.2

       Down another set of stairs was the basement. A drug dog used in the

search alerted on a panel in the basement wall. Behind the panel, the officers

found a stash of twenty-eight baggies of methamphetamine, each weighing about

one ounce.     Law enforcement estimated the methamphetamine found in the

house was worth about $40,000.

       Based on the spoils of the search, the State charged Ahart in a twelve-

count trial information.     Ahart stood trial in November 2015.             Five law

enforcement officers and a Division of Criminal Investigation analyst testified for

the State; the defense did not present evidence.         In closing statements, the

prosecutor told the jury:

       You have probably figured out what the fighting issue is in this
       case. It is with regard to the firearm. The defendant alleges that he
       did not know about or possess the firearm that was found in this
       living room. He submits that because of the way it’s packaged, that
       manner of packaging is such that he could not have been in
       immediate possession or control of it. The officers can’t say how
       long it was there. You can look at the circumstances that surround
       this crime to make a determination of whether or not he knew about
       it, whether or not he was in the immediate possession or control.


The prosecutor further argued because Ahart “turned his entire house into a drug

dealing operation” that it would not “stand to reason” that he knew all about the

other items found in the house but not the gun.

2
 The surveillance officers were aware that two other people, Saylor and Russell Clover,
had been in the house within an hour of the search.
                                              5


         In the defense closing, the attorney reminded the jury of the State’s

burden of proof: “Is it reasonable to believe that Mara Lubavs-Martin put that gun

there, knew it was there? Yes. It’s reasonable to believe. What about Mr.

Ahart?     If it’s reasonable to believe, that’s not proof by the State beyond a

reasonable doubt that he knew it.”

         The State offered the following response in its rebuttal argument:

         Robert Ahart is involved in a conspiracy with Mara Lubavs. . . . So
         if Mara Lubavs—if that’s her gun and she put it there and she
         possessed it and Robert Ahart knew nothing about it, because they
         were in conspiracy together, he is as responsible for that gun as
         she is. . . . You may use common sense and decide that it is plain
         that Robert Ahart knew about that gun and was in the immediate
         control of it or that Mara Lubavs did. And if she did, Robert Ahart is
         also guilty, as her coconspirator, of being in the possession and
         control of that firearm.

         Immediately after the jury went to deliberate, defense counsel moved for a

mistrial based on the prosecutor’s assertion about the conspiracy instruction and

his immediate control of the firearm. Defense counsel argued “the law requires

immediate possession of a firearm determination individually regarding persons

who may be charged with that and that the acts of a coconspirator regarding

immediate possession of a firearm cannot be attributable to some other person.”

Counsel contended the prosecutor’s argument “tainted what this jury is going to

discuss” and there was “no way to correct it.”

         The prosecutor argued the motion was untimely and the statement

correctly reflected the law on conspiracy. The court agreed the request was

untimely but reserved ruling on the mistrial until the jury reached its verdicts.

         Less than an hour later, the jury returned verdicts convicting Ahart of all

twelve    offenses:   (I)   conspiracy   to       deliver   more   than   five   grams   of
                                         6


methamphetamine (class “B” felony), (II) possession with intent to deliver more

than five grams of methamphetamine (class “B” felony), (III) failure to possess a

tax stamp (class “D” felony), (IV) conspiracy to deliver hydrocodone (class “C”

felony), (V) possession with intent to deliver hydrocodone (class “C” felony),

(VI) failure to possess a tax stamp (class “D” felony), (VII) possession of

hydromorphone (class “C” felony), (VIII) possession with intent to deliver

hydromorphone (class “C” felony), (IX) failure to possess a tax stamp (class “D”

felony), (X) conspiracy to deliver clonazepam (aggravated misdemeanor),

(XI) possession with intent to deliver clonazepam (aggravated misdemeanor),

and (XII) failure to possess a tax stamp (class “D” felony). For counts I, II, IV, V,

VII, VIII, X, and XI, the jury answered affirmatively special interrogatories asking

if Ahart was in “immediate possession or control of a firearm during the

commission” of the offense.

       After the return of the verdicts, the district court denied the motion for

mistrial, “based upon the waiver of the objection not being raised during the

course of the rebuttal closing.”    In rejecting Ahart’s motion for new trial, the

district court stated it did not believe “the weapons enhancement can be proved

by a conspiracy” but maintained that defense counsel had a duty to object

“during the course of the closing argument.” The court also concluded a “single

incident of alleged misconduct” did not require the grant of a new trial.

       At sentencing, the district court merged the convictions and sentences for

count I with count II, count IV with count V, count VII with count VIII, and count X

with count XI. The firearm enhancement under section 124.401(1)(e) doubled

the sentences for counts II, V, VIII, and XI to fifty years, twenty years, twenty
                                        7


years, and four years, respectively. The district court imposed a sentence not to

exceed fifty years by running the terms concurrently to each other and

concurrently to a pending federal sentence faced by Ahart.

      Ahart now appeals.

   II. Scope and Standard of Review

      On the only appellate claim we reach—sufficiency of the evidence

supporting the firearm enhancement—our review is for the correction of legal

error. See State v. Reed, 875 N.W.2d 693, 704 (Iowa 2016). We will uphold the

jury’s finding by special interrogatory if it is supported by substantial evidence.

See State v. Draper, 457 N.W.2d 606, 609 (Iowa 1990) (finding substantial

evidence to support jury’s habitual-offender finding). That measure is whether

the evidence would convince a rational trier of fact that the State proved its

allegation beyond a reasonable doubt. See State v. Henderson, 696 N.W.2d 5, 7

(Iowa 2005). “The evidence must raise a fair inference of guilt and do more than

create speculation, suspicion, or conjecture.” State v. Webb, 648 N.W.2d 72, 76

(Iowa 2002). To determine if the State has met its burden, we consider all record

evidence, both favorable and unfavorable to the verdicts, and view the evidence

in the light most favorable to the State. State v. Neitzel, 801 N.W.2d 612, 624

(Iowa Ct. App. 2011).

   III. Analysis

      Ahart argues the district court was wrong in allowing the jury to consider

whether he had immediate control of the pistol seized during the search. At

issue is the drug-offense firearm enhancement, which provides:
                                           8


             A person in the immediate possession or control of a firearm
       while participating in a violation of this subsection [3] shall be
       sentenced to two times the term otherwise imposed by law, and no
       such judgment, sentence, or part thereof shall be deferred or
       suspended.

Iowa Code § 124.401(1)(e).

       The district court instructed the jury that “immediate possession” means

“actual possession on one’s person” and “immediate control” means “the

defendant was in such close proximity to the weapon as to claim dominion and

control over it.” The instruction required the State to prove “the defendant had

knowledge of the existence and location of the firearm.” See State v. McDowell,

622 N.W.2d 305, 309 (Iowa 2001) (admonishing “trial courts to include in

instructions defining the immediate possession or control of a firearm the element

of knowledge of the firearm’s existence and location”).          The instruction also

advised that immediate control must have occurred “while the defendant was

participating in the crime.” See State v. Eickelberg, 574 N.W.2d 1, 5–6 (Iowa

1997) (distinguishing between time of participation in the offense and time of

discovery of controlled substances).

       Like McDowell, “it appears that this is an immediate-control case rather

than an immediate-possession case” because the firearm was not found on

Ahart’s person.     See 622 N.W.2d at 307.          Control is akin to constructive

possession. Eickelberg, 574 N.W.2d at 3. To prove constructive possession, the

State must show the defendant had knowledge of the contraband as well as

3
  This subsubsection criminalizes “manufactur[ing], deliver[y], or possess[ion] with the
intent to manufacture or deliver, a controlled substance, . . . or . . . act[ing] with,
enter[ing] into a common scheme or design with, or conspir[ing] with one or more other
persons to manufacture, deliver, or possess with the intent to manufacture or deliver a
controlled substance.” Iowa Code § 124.401(1).
                                         9

authority to maintain control of it. State v. Kern, 831 N.W.2d 149, 161 (Iowa

2013). Here, the question is whether the State proved Ahart had been “in such

close proximity to the weapon as to claim immediate dominion over it” and he

had “knowledge of the presence of the firearm.” See Reed, 875 N.W.2d at 708

(citation omitted). “Such knowledge and control may be inferred if the firearm is

found in a location under the defendant’s exclusive control.” Id.

      But Ahart did not have exclusive dominion and control over the residence

where the search occurred. He lived there with Lubavs-Martin. Moreover, law

enforcement saw Clover and Saylor leaving the house shortly before the search,

and during prior surveillance had seen other visitors, presumably drug

customers, frequently arriving and departing from the residence. Accordingly,

Ahart’s knowledge of the firearm’s existence and location may not inferred.

Rather, the State has the burden to establish Ahart’s actual knowledge of the

firearm or “incriminating statements or [other] circumstances from which a jury

might lawfully infer knowledge.” See id. (quoting State v. Reeves, 209 N.W.2d

18, 22 (Iowa 1973)); see also Webb, 648 N.W.2d at 79 (listing constructive

possession factors as incriminating statements, incriminating actions of the

defendant upon police discovery of the contraband, defendant’s fingerprints on

the contraband, and any other circumstances linking the defendant to the

contraband).

      After reviewing the record, we find the evidence insufficient to prove

Ahart’s knowledge of the existence and location of the firearm.4 The State did


4
  Because we reverse on the sufficiency question, we express no opinion on the
accuracy of the prosecutor’s argument concerning proof of the firearm enhancement
                                            10


not offer evidence of any incriminating statements or actions linking Ahart to the

pistol. The testimony also revealed the State did not pursue any latent fingerprint

testing of the gun. The case agent who obtained the search warrant testified he

did not request fingerprinting, reasoning as follows:

       The firearm in particular was found, in my mind, in the dominion
       and control of Mr. Ahart. The firearm was found in a living area
       where he’s obviously been living, near paperwork with his name on
       it. In my mind, we have tools such as latent prints to prove that he
       did—that he did touch it, but in this case the mere fact that
       dominion and control was under Mr. Ahart was deemed possession
       by me.

Without incriminating statements, actions, or fingerprints, we must decide if the

State offered evidence of “other circumstances” from which the jury could

reasonably infer Ahart’s knowledge of the gun’s existence and location.

       In resisting Ahart’s motion for judgment of acquittal, the State summarized

its evidence:

       The officers testified with regard to the particular location of this
       gun. It’s found near paperwork bearing Mr. Ahart’s name. It’s also
       found near a measuring cup that contains residue of
       methamphetamine. I think they estimated the distance as being
       thirty feet from a large amount of methamphetamine found in the
       panel and also about thirty-five feet from where the defendant was
       found standing.

The district court denied Ahart’s motion, noting the handgun’s proximity to “the

measuring cup that had remnants of methamphetamine and other paraphernalia

that was associated with methamphetamine.”



under the principles of conspiracy. But even assuming the argument was proper, the
State’s evidence also was insufficient to prove Lubavs-Martin’s knowledge of the
existence and location of the firearm, and the State does not advance a vicarious liability
argument for upholding the sufficiency of the firearm enhancement.
                                        11


       The evidence cited for submitting the firearm enhancement to the jury

supports an inference that Ahart was in the immediate vicinity of the gun when he

passed through the living area to retrieve methamphetamine from the stash on

the lower level of the house.    In Eickelberg, our supreme court adopted the

dictionary definition of “immediate” as “being near at hand: not far apart or

distant.” 574 N.W.2d at 4 (citation omitted). But proof of proximity alone does

not satisfy the knowledge requirement. If Ahart did not know the gun was inside

the opaque drawstring bag, which was wrapped inside a white cloth knee brace,

his proximity would not amount to immediate control. See State v. Cashen, 666

N.W.2d 566, 572 (Iowa 2003) (“Simply because a person can reach out and

grasp something does not mean he or she has control or dominion over the

object.”); see also State v. Atkinson, 620 N.W.2d 1, 4–5 (Iowa 2000) (holding

defendant’s physical proximity to drugs was insufficient to constitute constructive

possession).

      The State presented no evidence to show Ahart knew what was wrapped

inside the knee brace. The State did not offer the knee brace as an exhibit.

Photographic exhibits show the white cloth among a clutter of items on the floor

behind a couch and under a table. State’s Exhibit 39 appears to depict the mess

before the officers started their inventory of items seized. The photograph shows

the white cloth obscured behind a small trash bin and underneath a green

bungee cord and black glasses case. Nothing from the outward appearance of

the knee brace would indicate that it held a small pistol. The brace is lying next

to a phonebook on top of which is a methamphetamine pipe.            See State v.

Nickens, 644 N.W.2d 38, 41 (Iowa Ct. App. 2002) (holding State failed to
                                          12


establish constructive possession when cocaine and firearm were not in plain

view and to establish Nickens’s knowledge the State relied on apartment’s size

and presence of drug paraphernalia).

       An officer testified Ahart’s checkbook and credit card statement were

found on a table “in the same vicinity” as the firearm.           Given the chaotic

housekeeping evident in the photographic exhibits, the proximity of that

paperwork to the pile of random items on the floor, including the knee brace,

provides no reasonable inference that Ahart had knowledge of the gun’s

existence or location.

       On appeal, the State compares this case to Eickelberg, where our

supreme court concluded the defendants were in immediate control of a firearm

when they were growing marijuana in the basement and stored a shotgun on the

floor of their bedroom closet upstairs.5 See 574 N.W.2d at 5. The Eickelberg

court rejected the defendants’ suggestion that the State must prove a “direct”

connection between the drug offense and the immediate possession or control of

the firearm.    See id. at 6.     The court observed that the defendants had

“transformed their entire home into a facility for the manufacture of marijuana”

and, therefore, the district court had properly applied the penalty-enhancement

provision. Id. The State argues that, similarly, Ahart turned his entire house into

a facility for drug dealing, placing him in immediate control of the firearm when he

accessed the methamphetamine in the basement.




5
 The facts in Eikelberg also show the police “found an unloaded shotgun stored in a gun
case on a gun rack in the same room as the marijuana plants.” 574 N.W.2d at 2.
                                          13

       The analysis in Eickelberg did not address the defendants’ knowledge of

the existence or location of the shotguns.6 The court’s reference to transforming

the entire home into a marijuana manufacturing facility focused on the “while

participating” language from section 124.401(1)(e) and not the proof expected

from the State concerning the defendants’ knowledge that the guns were present

in the house. Id. at 5–6. Accordingly, Eickelberg does not dictate our decision

regarding Ahart’s knowledge of the firearm’s existence and location.

       We also find Eickelberg can be distinguished because it does not appear

from the factual recitation that either the shotgun on the closet floor or the one on

the basement gun rack were obscured from view. See id. at 2. Because the

pistol found in Ahart’s residence was not in plain sight, we find this case more

similar to Reed and McDowell than Eickelberg. The State argues Reed and

McDowell differ in a critical way, namely that the firearms were found in or near a

woman’s purse. See Reed, 875 N.W.2d at 697, 709 (recounting revolver was

found inside a cabinet, behind an Xbox, and “next to a woman’s purse and a pink

lotion bottle”); McDowell, 622 N.W.2d at 308 (finding no evidence defendant

knew firearm was in girlfriend’s purse). While it is true that nothing about the

black drawstring bag or the cloth knee brace wrapped around the pistol in Ahart’s

residence suggested “some type of gender-specific sphere of protection which

prevents men from opening or having access to this socially-constructed sacred




6
  The Eickelberg court also relied on the constructive possession definitions from State
v. Rudd, 454 N.W.2d 570, 571 (Iowa 1990), which has since been overruled in Webb,
648 N.W.2d at 79.
                                       14


vessel of femininity,”7 the pistol was nevertheless concealed from view. Under

these facts, the State was required to show Ahart actually knew the gun was

disguised by the knee brace and located amid the clutter. The State offered no

evidence of the type credited in Reeves or Webb to establish Ahart’s knowledge

of the firearm’s existence or location.     See McDowell, 622 N.W.2d at 308.

Consequently, the district court should have granted the defense motion asking

to remove the firearm enhancement from the jury’s consideration.

       Because Ahart does not challenge the underlying judgments for his drug

offenses, those judgments remain in place. We reverse the imposition of the

penalty enhancement under section 124.401(1)(e) and remand for resentencing

recognizing the absence of a finding that defendant had immediate possession or

control of a firearm.

       JUDGMENT REVERSED IN PART; REMANDED FOR RESENTENCING.




7
 See State v. McDowell, No. 99-0227, 2000 WL 852731, at *2 (Iowa Ct. App. June 28,
2000), vacated, 622 N.W.2d 305 (Iowa 2001).
