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State v. McPhail

Court of Appeal of Iowa

August 7, 2013

STATE OF IOWA, Plaintiff-Appellee,
v.
TED JAMES MCPHAIL, Defendant-Appellant.

Appeal from the Iowa District Court for Mitchell County, Christopher C. Foy (sentencing) and DeDra L. Schroeder (trial), Judges.

A defendant appeals from jury verdicts finding him guilty of being a felon in possession of firearms.

Mark C. Smith, State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Elisabeth Reynoldson, Assistant Attorney General, Mark L. Walk, County Attorney, and Aaron R. Murphy, Assistant County Attorney, for appellee.

Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.

TABOR, J.

A jury convicted Ted McPhail of four counts of being a felon in possession of a firearm after police discovered two revolvers, one rifle, and ammunition at his girlfriend's residence, where he regularly stayed. McPhail first argues it is not a crime under Iowa law for a felon to possess ammunition. He also contends the State offered insufficient evidence to prove he possessed the three guns.

The State concedes McPhail could not be convicted for his alleged possession of ammunition but urges us to affirm the remaining firearm counts based on constructive possession. Because the State's proof fell short of showing McPhail had knowledge of the firearms or the right to exercise control over them, we reverse the judgments of conviction and remand for dismissal of the charges.

I. Background Facts and Proceedings.

On November 16, 2011, the North Central Iowa Narcotics Task Force Special Operations Group executed a search warrant at Shannon Henaman's residence in Osage. The warrant application identified both Henaman and McPhail, her boyfriend. The warrant authorized the officers to search for illegal narcotics, as well as firearms and ammunition.

McPhail was the only person in the residence when officers executed the search warrant. They handcuffed him in the living room area. He declined to answer the officers' questions.

During the search of the residence, officers found three firearms: a Rossi Puma .45 caliber Colt rifle, a Ruger .22 caliber revolver, and a Smith & Wesson.45 caliber Colt revolver. All three firearms were inside separate cases, closed but not locked, atop a shelf located above a window over the kitchen sink. The officers also found a tackle box containing ammunition on that shelf. The search team located a single .45 caliber bullet in a kitchen drawer concealed under another item.

Inside a nightstand in the master bedroom, the officers found a device known as a speed loader, which is used to quickly insert six rounds into a six-cylinder revolver. The speed loader contained rounds of .45 caliber ammunition. The officers removed the speed loader from the drawer to photograph it. The seizing officer could not recall if the speed loader was stored beneath other items in the drawer. In addition to firearms and ammunition, officers discovered marijuana and paraphernalia in the home.

On December 20, 2011, the State charged McPhail with four counts of being a felon[1] in possession of a firearm, in violation of Iowa Code section 724.26 (2011): count I was based on his possession of ammunition; count II was based on his possession of the rifle; count III was based on his possession of the Ruger revolver; and count IV was based on his possession of the Smith & Wesson revolver. The State also charged McPhail with one count of possession of marijuana, in ...


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