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State v. Akers

Court of Appeals of Iowa

September 13, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
MICHAEL PATRICK AKERS, Defendant-Appellant.

         Appeal from the Iowa District Court for Scott County, Nancy S. Tabor (motion to suppress) and Mark D. Cleve (trial/sentencing), Judges.

         Michael Akers appeals his conviction for possession of a firearm as a felon. REVERSED AND REMANDED FOR DISMISSAL.

          Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ. Tabor, J., takes no part.

          VAITHESWARAN, Presiding Judge.

         Following a bench trial, the district court found Michael Akers guilty of possession of a firearm as a felon. See Iowa Code § 724.26(1) (2015). On appeal, Akers argues (1) the evidence was insufficient to support the charge and (2) the district court should have granted his motion to suppress evidence. We find the first issue dispositive, making it unnecessary to address the second issue.

Iowa Code section 724.26(1) states:
A person who is convicted of a felony in a state or federal court, or who is adjudicated delinquent on the basis of conduct that would constitute a felony if committed by an adult, 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.

         As the district court stated, this provision required the State to "prove by evidence beyond a reasonable doubt . . . the defendant knowingly had . . . in his possession a firearm, and secondly, that at that time the defendant had previously been convicted of a felony in the State of Illinois."

         On appeal, Akers only challenges the second element. He argues "the evidence submitted does not support a finding that he was [a] felon as defined by Iowa Code section 724.25(1)." See id. §§ 724.25(1), .26(1); see also Iowa Crim. J. Inst. 2400.7 & cmt. Our review of the district court's findings following a bench trial is for substantial evidence. See State v. McFadden, 320 N.W.2d 608, 614 (Iowa 1982).

         "As used in section 724.26, the word 'felony' means any offense punishable in the jurisdiction where it occurred by imprisonment for a term exceeding one year . . . ." Iowa Code § 724.25(1). To prove the prior felony, the State offered a certified record of documents associated with a 2010 Illinois charge of "criminal damage to property, " "said damage being in excess of $300, but not in excess of $10, 000." Although one of the documents identified the Illinois statute on which the charge was grounded, the most that can be gleaned about the penalty from this statute is that the crime is a misdemeanor "if the damage to property does not exceed $300" and a "Class 4 felon[y] if the damage to property exceeds $300 but does not exceed $10, 000." See 720 Ill. Comp. Stat. 5/21-1(1)(a), (2) (2010). None of the documents, including the sentencing order, made reference to the penalty statute associated with the charge. Cf. State v. Sanborn, 564 N.W.2d 813, 816 (Iowa 1997) ("Nowhere in the exhibit, however, are the penalty provisions included.").

         Assuming without deciding the value made the crime a class 4 felony rather than a misdemeanor, the Illinois legislature's characterization of the charge is not dispositive of whether Akers was a felon. See State v. Olsen, 848 N.W.2d 363, 369 (Iowa 2014) ("[T]he fact that another state may label a crime a 'felony' is not determinative."). As noted, the State was required to prove the Illinois crime was punishable by a term of imprisonment exceeding one year. See Sanborn, 564 N.W.2d at 816 ("Where the predicate felony underlying prosecution for a violation of section 724.26 occurs in another state, that state's punishment must satisfy the Iowa definition.").

         The State attempts to circumvent the omission of the Illinois penalty statute by asking us to take judicial notice of that statute. In the State's view, the law was "sufficiently pled . . . by plain designation" to warrant this procedure. See Iowa R. Civ. P. 1.415. To the contrary, the State did ...


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