                    IN THE COURT OF APPEALS OF IOWA

                                 No. 17-1739
                             Filed April 17, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LB DEONTAY GOODJOINT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.



      The defendant appeals his conviction for possession of a firearm by a

felon. REVERSED AND REMANDED FOR DISMISSAL.



      Elena M. Greenberg of Greenberg & Hurd, LLP, Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee.



      Considered by Potterfield, P.J., and Tabor and Bower, JJ.
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POTTERFIELD, Presiding Judge.

       LB Goodjoint appeals his conviction for possession of a firearm as a felon.

Goodjoint challenges the sufficiency of the evidence to support the determination

he was previously convicted of a qualifying felony. We review challenges to the

sufficiency of the evidence for correction of errors at law. State v. Romer, 832

N.W.2d 169, 174 (Iowa 2013).

       Iowa Code section 724.26 (2016) makes it a crime for a person who was

previously convicted of a felony to knowingly carry a firearm. The word “felony,”

as used in section 724.26, is statutorily defined as

       any offense punishable in the jurisdiction where it occurred by
       imprisonment for a term exceeding one year, but does not include
       any offense, other than an offense involving a firearm or explosive,
       classified as a misdemeanor under the laws of the state and
       punishable by a term of imprisonment of two years or less.

Iowa Code § 724.25.

       The State relied upon Goodjoint’s 2013 conviction for carrying weapons as

the predicate felony. At the jury trial, the State called Whitney Mann, who was

Goodjoint’s probation officer in 2013.        Through her testimony, the State

introduced as an exhibit an order from Goodjoint’s 2013 case that showed the

court revoked his deferred judgment and adjudged him guilty of carrying a

concealed weapon, in violation of Iowa Code section 724.4(1). The State also

called the two police officers who arrested Goodjoint in connection with the

present crime. When asked if he had learned “that Goodjoint has been convicted

of a felony or predicate offense for the offense of felon in possession of a

firearm,” Officer Shawn Morgan responded, “Yes.” Similarly, Officer Brandon

Holtan was asked if he learned Goodjoint “was previously convicted of the
                                            3


offense of carrying weapons,” and responded, “Yes.”              The State offered no

evidence regarding the specifics of the 2013 conviction before it rested.

       Goodjoint moved for a judgment of acquittal,1 arguing the State failed to

prove Goodjoint had been previously convicted of a felony or qualifying offense

under section 724.26.       As Goodjoint argued, carrying weapons—pursuant to

section 724.4(1)—is not a felony. The section 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.

Iowa Code § 724.4(1) (emphasis added).               Aggravated misdemeanors are

generally placed “outside the sweep of the possession-of-a-firearm-by-a-felon

statute.” State v. Buchanan, 604 N.W.2d 667, 669 (Iowa 2000). Thus, in order

to establish that Goodjoint’s conviction for carrying weapons forms the underlying

basis for the felon-in-possession-of-a-firearm charge, the State had to prove the

carrying-weapons conviction involved a firearm.          See id. (interpreting section

724.25(1) “as a legislative directive that those committing aggravated

misdemeanors by use of firearms” are “prohibited from possessing firearms”).

Goodjoint argued:

       The law requires that for the offense to qualify under [section]
       724.26, the statute that is at issue in this case, the prior offense
       must involve a firearm.
              We have heard testimony from witnesses that he had a
       conviction for carrying concealed, but . . . no testimony that the
       offense involved a firearm.

1
 At trial, Goodjoint stated he was moving for a directed verdict. We treat this motion for
directed verdict as a motion for judgment of acquittal. See State v. Adney, 639 N.W.2d
246, 249 n.2 (Iowa Ct. App. 2001).
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                That [carrying weapons] statute can be broken by carrying a
        knife, by carrying a baseball bat, by carrying a set of brass knuckles
        and nothing has been submitted to the jury to establish that the
        underlying offense involved a firearm; therefore, the State hasn’t
        carried its burden. Therefore, this case must be dismissed.

        In response, the district court noted that whether the prior offense was a

felony within the meaning of the felon-in-possession-of-a-firearm statute was a

legal question for the court to decide. The court contrasted this decision with that

the jury must make—whether it was in fact Goodjoint who was previously

convicted of the crime in question. Goodjoint agreed with the court’s distinction

but urged “that the court must still [make the legal determination] based on the

evidence presented by the State because it’s an element of the offense.”

        The district court disagreed and asked that the court file from Goodjoint’s

2013 conviction be obtained and brought to the courtroom, noting it was “the only

way for the court to make that legal determination of what that offense was.” The

court reviewed the file off the record before stating, outside the presence of the

jury:

                 In considering whether the defendant’s conviction in AGCR
        251790 falls within that definition of felony, the court looks to the
        trial information in that case number which charges the defendant
        with, and I’m going to quote, carrying a concealed weapon in
        violation of Iowa Code Section 724.4 by going armed with or
        concealing on or about his person a dangerous weapon, to wit: 22
        caliber pistol.
                 And to that trial information, the defendant, on August 31st,
        2012, entered a plea of guilty to that charge and was granted at
        that time a deferred judgment, so the charge is clearly involving a
        22 caliber pistol.
                 That deferred judgment was then revoked and the order that
        is entered April 18th, 2013 and conviction was entered to that same
        offense on that date. So the court concludes as a matter of law that
        the defendant’s conviction in AG 251790 is a felony as defined in
        724.25(1), which then would apply to the offense that is pending,
                                          5


       possession of a firearm by a felon in violation of Iowa Code section
       724.26.

       The trial information upon which the court relied was not presented by the

State to the jury and is not a part of the record on appeal. On appeal, Goodjoint

argues his conviction should be dismissed as the State failed to meet its burden

to prove the elements for possession of a firearm by a felon and the district court

should not have sua sponte reviewed the file for the alleged predicate crime in

order to assist the State in meeting its burden. We agree. While the district court

had to decide the question of law pertaining to whether Goodjoint’s 2013

conviction met the requirements of a predicate offense, the court should have

done so based upon the evidence the State presented. The State’s failure to

establish that the underlying aggravated misdemeanor involved a firearm was a

failure to prove an element of the present offense, which requires the court to

grant the defendant’s motion for judgment of acquittal. See Adney, 639 N.W.2d

at 252 (ruling the trial court should have granted the defendant’s motion for

judgment of acquittal when there was not evidence in the record to support a

necessary element of the crime).

       Moreover, the file the court reviewed after the close of the State’s case in

regard to Goodjoint’s 2013 conviction was not offered or admitted into evidence.

We have the court’s oral statements from its judicial notice of the file. So we

cannot say there is substantial evidence in the record before us to support the

conviction Goodjoint challenges on appeal. See State v. Boggs, 741 N.W.2d

492, 505 n.2 (Iowa 2007) (denying request to supplement record for appeal

because “[i]t is a fundamental principle that our review of the district court rulings
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is limited to the record made before the district court”); Best v. Yerkes, 77 N.W.2d

23, 30 (Iowa 1956) (“[W]e are limited to the record as made in the lower court,

and by the errors assigned here.”).

       Because the record lacks substantial evidence to support the “felon”

element of the crime of felon in possession of a firearm, we reverse Goodjoint’s

conviction, judgment, and sentence and remand for dismissal.          See State v.

Akers, No. 16-1776, 2017 WL 4050155, at *2 (Iowa Ct. App. Sept. 13, 2017); see

also State v. Swartz, 541 N.W.2d 533, 538 (Iowa Ct. App. 1995) (“[R]etrial is

barred if a conviction is reversed on grounds for legally insufficient evidence

because such reversal is equivalent, for double jeopardy purposes, to a jury

verdict of acquittal.” (citation omitted)).

       REVERSED AND REMANDED FOR DISMISSAL.
