                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0635
                               Filed March 6, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KEVIN WILLIE McGEE, JR,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dallas County, Randy V. Hefner,

Judge.



      Kevin McGee Jr. challenges the sufficiency of the evidence underlying his

criminal convictions. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Brenda J. Gohr, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Doyle, P.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.

      A jury convicted Kevin McGee Jr. of third-degree sexual abuse and

possession of a firearm as a felon. The jury also made a conclusion sufficient for

application of the minimum sentence contained in Iowa Code section 902.7

(2017)—that McGee represented he had a firearm at the time he committed the

crime of sexual abuse. On appeal, McGee challenges the sufficiency of the

evidence as to the possession charge and the jury’s finding that he represented

he had a firearm when he committed sexual abuse.

I.    Background Facts and Proceedings

      Upon the evidence presented at trial, a rational jury could make the

following factual findings. On July 20, 2017, A.H. was hanging out with her friend,

E.R., when McGee messaged her through social media and asked if she wanted

to go hang out at a hotel. Although she had never met McGee before, A.H.

responded in the affirmative. McGee picked up the girls and drove them to a hotel

in West Des Moines. When they arrived, McGee did not have a key to the hotel

room. They located McGee’s cousin, D.C., but he did not have a key either.

McGee paid E.R. to climb over a fence and enter the room through a window. After

doing so, E.R. let A.H. and McGee in, and the three of them hung out in the hotel

room. The girls sat on the bed closest to the window, and McGee sat on the

counter. Also sitting on the counter near McGee was, among other things, a

handgun. McGee was a convicted felon at this time.

      At some point, D.C. entered the room and starting “dry humping” the girls

but eventually stopped. After this episode, D.C. left, and McGee and the girls

decided to go to a gas station. Before leaving for the gas station, McGee removed
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the handgun from the counter and placed it underneath the mattress of the bed

closest to the window. The evidence is undisputed that McGee handled the gun.

At the gas station, McGee bought the girls beverages and cigarettes. He also

secretly purchased condoms.        The three returned to the hotel where they

continued to hang out.

       Later, McGee asked A.H. to lay down with him on the bed near the window.

A.H. complied. Eventually, McGee began trying to remove A.H.’s shorts and

swimsuit bottoms. A.H. resisted. McGee was able to remove A.H.’s shorts and

swimsuit, upon which he put a condom on and began having intercourse with A.H.,

despite A.H. telling McGee “no” several times. McGee eventually changed his

condom and continued, then he removed that condom and continued intercourse

unprotected until he finished. E.R. was on the other bed at this time and observed

the assault. A.H. testified she just laid there and did not resist or say anything, as

she was scared because “[t]here was a gun under the mattress. He could have

reached for it any time.” A.H. also testified McGee did not threaten her with the

gun or reach for it during the assault. After finishing, McGee advised the girls to

meet him outside to go get something to eat and then he left the room. A.H. had

E.R. help her get dressed. They tried to locate McGee thereafter, but he had

apparently left the hotel. The hotel room was not registered to McGee or his

cousin. A.H. called the police and reported the sexual assault later that morning.

       The State charged McGee with three counts of sexual abuse in the third

degree and one count of possession of a firearm as a felon. The State amended

its trial information to allege McGee to be subject to the minimum-sentence

requirement of Iowa Code section 902.7. Following the State’s case-in-chief at
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trial, McGee moved for judgment of acquittal on all counts and the allegations

concerning the minimum-sentence requirement. The court denied the motion.

McGee did not present evidence but again moved for judgment of acquittal before

final submission to the jury. The motion was denied. The jury found McGee guilty

of one count of sexual abuse in the third degree and possession of a firearm as a

felon. The jury also found McGee represented that he had a firearm at the time of

the commission of the crime of sexual abuse.

       McGee was sentenced to a term of incarceration not to exceed ten years

with a mandatory minimum of five years on the sexual-abuse charge and a term

of incarceration not to exceed five years on the possession charge, to be served

concurrently. McGee appeals.

II.    Standard of Review

       Challenges to the sufficiency of the evidence are reviewed for corrections

of errors at law. State v. Kelso-Christy, 911 N.W.2d 663, 666 (Iowa 2018). The

court views “the evidence ‘in the light most favorable to the State, including all

reasonable inferences that may be fairly drawn from the evidence.’” State v. Ortiz,

905 N.W.2d 174, 180 (Iowa 2017) (quoting State v. Huser, 894 N.W.2d 472, 490

(Iowa 2017)). All evidence is considered, not just that of an inculpatory nature.

See Huser, 894 N.W.2d at 490. “[W]e will uphold a verdict if substantial evidence

supports it.” State v. Wickes, 910 N.W.2d 554, 563 (Iowa 2018) (quoting State v.

Ramirez, 895 N.W.2d 884, 890 (Iowa 2017)). “Evidence is substantial if, ‘when

viewed in the light most favorable to the State, it can convince a rational jury that

the defendant is guilty beyond a reasonable doubt.’” Id. (quoting Ramirez, 895

N.W.2d at 890).
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III.   Analysis

       The State bears the burden of proving every element of a charged offense.

State v. Armstrong, 787 N.W.2d 472, 475 (Iowa Ct. App. 2010). McGee does not

challenge any of the jury instructions employed in his trial. As such, the jury

instructions are the law of the case for purposes of reviewing the sufficiency of the

evidence. See State v. Banes, 910 N.W.2d 634, 639 (Iowa Ct. App. 2018).

       As to the charge of possession of a firearm as a felon, the jury was

instructed the State was required to prove “the defendant knowingly possessed a

firearm.”   McGee challenges the sufficiency of the evidence concerning this

element. The jury was instructed as to several types of possession, which included

the instruction that “[a] person who has direct physical control over a thing on his

person is in actual possession of it.” The evidence is absolutely undisputed that

McGee physically handled the firearm in question, moving it from the counter in

the hotel room and placing it under the bed mattress. The evidence was sufficient

for a rational jury to conclude McGee knowingly possessed the handgun.

       As to the section 902.7 sentencing enhancement, the jury was instructed as

follows:

                If you find the defendant guilty of Sexual Abuse in the Third
       Degree with respect to any count charging that crime, you must then
       determine whether the defendant represented that he had a firearm.
                To represent that he had a firearm means to state, or act as
       if, a firearm was in his possession at the time of the crime. It is not
       necessary there actually was a firearm, or that it was shown.
       However, there must have been an act or statement by defendant
       which would cause the victim to reasonably believe the defendant
       had a firearm.
                The State must prove . . . this proposition beyond a
       reasonable doubt. You shall answer the question about this issue
       which is attached to these instructions. Your answer, as with your
       verdict, must be unanimous.
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      McGee argues the evidence is insufficient to show that he represented he

had a firearm at the time of the crime. Here the evidence shows that, prior to

leaving for the gas station, McGee physically placed the handgun under the

mattress, which A.H. and E.R. observed, in the exact location where he later

sexually assaulted A.H. Having observed him place the gun under the mattress

where she was being sexually assaulted, A.H. testified she did not resist because

“[t]here was a gun under the mattress. He could have reached for it any time.”

The lapse in time between the placement of the gun and the sexual assault does

not negate the act of placing the gun where the crime would later be committed or

A.H.’s belief that it could be accessed by McGee while she was being assaulted.

Viewing the evidence in a light most favorable to the State and verdict, as we must,

we find the evidence was sufficient to engender a jury question on the issue of

whether there was an act or statement by McGee that would cause A.H. to

reasonably believe he had a firearm.

IV.   Conclusion

      We conclude the evidence was sufficient for submission to the jury. We

therefore affirm the denial of McGee’s motions for judgment of acquittal and,

consequently, his convictions and sentences.

      AFFIRMED.
