                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1555
                            Filed October 12, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DONALD RAY HARRIS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Kellyann M.

Lekar, Judge.



      Donald Harris appeals the jury verdict finding him guilty of possession of a

firearm as a felon. AFFIRMED.




      Jesse A. Macro Jr. of Gaudineer & George, L.L.P., West Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee.




      Considered by Danilson, C.J., and Mullins and Bower, JJ.
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DANILSON, Chief Judge.

       Donald Harris appeals following judgment and sentence entered upon

conviction of possession of a firearm as a felon, in violation of Iowa Code section

724.26(1) (2013).

       On August 15, 2014, police received a report of a person with a firearm in

a silver car. When a vehicle matching the description was stopped, five people

were in the vehicle. Leondra Hughes was the driver, Dequayvion Davis was in

the front passenger seat, and three men were in the rear seat—Harris being one

of them. The officer who pulled the vehicle over noticed the passenger in the

front seat and the middle passenger in the rear seat making motions toward the

driver’s seat. Upon the police search of the vehicle, a firearm inside a sock was

located on the floorboard under the driver’s seat.

       Harris was charged with carrying weapons1 and with being a felon in

possession of a firearm.2         Hughes and Davis were also charged as co-

defendants but later entered guilty pleas.

       At trial, the officer who stopped the vehicle testified that he saw the person

in the middle rear seat of the stopped car move forward toward the driver’s seat.

The police car video shows the middle rear seat passenger move forward toward

1
  Iowa Code section 724.4(1) provides:
               Except as otherwise provided in this section, a person who goes
       armed with a dangerous weapon concealed on or about the person, or
       who, within the limits of any city, goes armed with a pistol or revolver, or
       any loaded firearm of any kind, whether concealed or not, or who
       knowingly carries or transports in a vehicle a pistol or revolver, commits
       an aggravated misdemeanor.
2
  Iowa Code section 724.26(1) provides:
               A person who is convicted of a felony . . . and who knowingly has
       under the person’s dominion and control or possession, receives, or
       transports or causes to be transported a firearm or offensive weapon is
       guilty of a class “D” felony.
                                          3


the driver’s seat at the time of the traffic stop. The testimony of the several police

officers who converged on the scene placed Harris in the middle rear seat. Davis

testified Harris was in the rear middle seat of the car Hughes was driving when

they were stopped by police. Davis also stated that he saw Harris lean over to

the front driver’s seat, and then when Davis looked under the driver’s seat, he

saw a sock containing a gun. But Hughes testified Harris was in the rear seat

behind the driver’s seat. She also testified that when stopped by the police,

Harris handed her a sock with something in it. She claimed not to know what

was in the sock. Harris stipulated he had previously been convicted of a felony.

       At the close of the evidence, Harris’s attorney moved for judgment of

acquittal, stating the evidence presented was not sufficient to show “one, [Harris]

possessed this weapon, and/or, two, he was carrying it.” The court overruled the

motion, finding jury questions existed.

       Concerning the charge of possession or dominion and control of a firearm

as a felon, the trial court instructed the jury that the State had to prove (1) “Harris

knowingly possessed or had under his dominion and control a firearm” and (2)

“Harris was previously convicted of a felony.”       Actual, constructive, and joint

possession were defined in another instruction.         The phrase “dominion and

control” was defined as meaning “ownership or right to a firearm and the power

or authority to manage, regulate or oversee its use.” The court also instructed

the jury, “For Mr. Harris to know or have knowledge of something means he had

a conscious awareness of it.”

       Concerning the elements of carrying weapons, the court instructed the jury

Harris or someone he aided and abetted “[w]ent armed with a pistol, revolver or
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loaded firearm within the city limits of Waterloo, Iowa” or “[k]nowingly carried or

transported a pistol or revolver in a vehicle.” The court instructed the jury, “To

‘go armed’ means Mr. Harris was aware of the pistol, revolver or loaded firearm

and it was in a place where it was readily accessible to him.”

       The jury found Harris guilty of being a felon in possession of a firearm but

not guilty of going armed.     Harris argued to the trial court the verdicts were

inconsistent.   The court rejected that contention, concluding only legally-

inconsistent verdicts are prohibited:

       The crimes, as charged, are two separate and distinct offenses with
       separate and distinct elements. The defendant wishes to argue
       that the two alternatives to the crime of carrying weapons, as
       charged in Instruction No. 20, are essentially the same as element
       No. 1 of Instruction No. 19 concerning the defendant’s possession
       of a firearm. This is simply not the case. The defendant attempts
       to focus on the element of “knowing” as inextricably linking the
       crime of carrying weapons and the first element of the charge of
       possession of a firearm as a felon. The focus on the term
       “knowing” ignores the more important portions of Instruction No. 20
       and paragraph 1 in Instruction No. 19 which are the action verbs
       contained within those instructions.
               ....
               . . . These verdicts are not legally inconsistent in light of the
       specific language and separate and distinct definitions concerning
       that language which are included within the instructions. This court
       does not believe that the sanctity of jury deliberation should be
       probed in this case . . . .

       On appeal, Harris asserts there is insufficient evidence of dominion and

control or possession to sustain the conviction, stating, “The contested issue at

trial was whether the State of Iowa proved beyond a reasonable doubt that Mr.

Harris knowingly possessed or had dominion and control of the firearm.” We

review sufficiency-of-the-evidence challenges for correction of errors at law.

State v. Schlitter, 881 N.W.2d 380, 388 (Iowa 2016). In reviewing the sufficiency
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of the evidence, we view the evidence in the light most favorable to the State and

assume the truth of the evidence offered. Id. at 389.

       “We will uphold a verdict if substantial record evidence supports it.” State

v. Howse, 875 N.W.2d 684, 688 (Iowa 2016) (citations omitted). “Evidence is

substantial when ‘a rational trier of fact could conceivably find the defendant

guilty beyond a reasonable doubt.’” Id. (citation omitted). Moreover, witness

credibility is for the jury to determine. State v. Myers, 382 N.W.2d 91, 97 (Iowa

1986) (“The ultimate determination of the credibility or truthfulness of a witness is

not ‘a fact in issue,’ but a matter to be generally determined solely by the jury.”).

       An officer saw the person in the middle rear seat of the stopped car move

forward toward the driver’s seat. The testimony of Davis and the police officer

placed Harris in the middle rear seat. The police car video shows the middle rear

seat passenger move forward toward the driver’s seat at the time of the traffic

stop. Davis testified he saw Harris lean over to the front driver’s seat, and when

Davis looked under the car seat, he saw the sock containing a gun. Hughes

testified Harris handed her the sock. The gun was discovered on the driver’s

side, closer to the center console and wrapped in a sock.

       Although the jury could have found Harris’s movements innocuous or

withheld giving weight from the testimony of Davis and Hughes, “the jury is at

liberty to believe or disbelieve the testimony of witnesses as it chooses, and give

such weight to the evidence as in its judgment the evidence was entitled to

receive.” State v. Blair, 347 N.W.2d 416, 420 (Iowa 1984) (citation omitted). “The

very function of the jury is to sort out the evidence presented and place credibility

where it belongs.” Id. The existence of evidence that might support a different
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verdict does not negate the existence of substantial evidence sufficient to support

the verdict. See State v. Frake, 450 N.W.2d 817, 818-19 (Iowa 1990). Viewing

the evidence in a light most favorable to the State, we find there is substantial

evidence in this record to support the conviction by Harris’s furtive movements

made at the time of the stop, by the location of both the gun and Harris in the

vehicle, and by the testimony of Davis and Hughes.

       Harris next argues the guilty verdict for possession of a firearm is

inconsistent with the jury’s finding of not guilty on the charge of going armed.

This is not the type of case where the jury verdicts present a legal impossibility of

convicting a defendant of a compound crime while at the same time acquitting

the defendant of a predicate crime. See State v. Merrett, 842 N.W.2d 266, 274

(Iowa 2014) (noting “a criminal conviction of a compound offense cannot stand

when the defendant has been acquitted of the underlying predicate offense”

(citation omitted)); see also State v. Fintel, 689 N.W.2d 95, 101 (Iowa 2004) (“If

jury verdicts are to be examined for inconsistency, the test to be applied is

whether the verdict is so logically and legally inconsistent as to be irreconcilable

within the context of the case. . . . [T]here was no inconsistency or duplication in

the instructions.   Nor was there any inconsistency in the jury’s acquittal of

defendant with respect to a completed manufacture of a controlled substance

under the elements of Instruction 17 while convicting him based on the elements

of this statutory crime that do not require a completed manufacture.”). Moreover,

as instructed, the jury could have determined that the gun was not readily

accessible to Harris even though he had the power or authority to manage,

regulate, or oversee its use.
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       Finally, he contends trial counsel was constitutionally deficient in failing to

request a jury instruction requiring corroboration of accomplice testimony, failing

to object to the prosecutor’s improper impeachment of Davis and Hughes, and

failing to lodge a more specific motion for judgment of acquittal.

       Ineffective-assistance-of-counsel claims are reviewed de novo. Schlitter,

881 N.W.2d at 388. To prove an ineffectiveness claim, a defendant must show

by a preponderance of the evidence both that counsel failed an essential duty

and that the failure resulted in prejudice. Id. We generally preserve claims of

ineffective assistance of counsel for postconviction-relief proceedings, unless the

record on appeal is sufficient to evaluate trial counsel’s performance. See State

v. Clay, 824 N.W.2d 488, 494 (Iowa 2012). Here, a more developed record is

necessary3 and trial counsel should have the opportunity to address Harris’s

challenges. We therefore affirm the conviction and preserve the ineffectiveness

claims for possible postconviction-relief proceedings.

       AFFIRMED.




3
  While the adequacy of the record to address the corroboration and impeachment
issues on prejudice grounds alone is a close issue, we do not address them here
because Harris also raises another claim concerning the adequacy of the motion for
judgment of acquittal. We therefore preserve the claims for possible postconviction
proceedings. See Clay, 824 N.W.2d at 501 (noting “the proper practice when dealing
with multiple ineffective assistance claims”).
