State of Iowa v. Darius Lejuan Wade

IN THE COURT OF APPEALS OF IOWA

No. 22-1650
Filed November 8, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

DARIUS LEJUAN WADE,
Defendant-Appellant.
________________________________________________________________

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

Lekar, Judge.

Darius Wade appeals following his convictions for possession of a firearm

or offensive weapon by a felon as a habitual offender and operating while

intoxicated, second offense. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Anagha Dixit, Assistant Attorney

General, for appellee.

Considered by Greer, P.J., Badding, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023).
2

SCOTT, Senior Judge.

Darius Wade appeals his convictions following a bench trial for possession

of a firearm or offensive weapon by a felon as a habitual offender and operating

while intoxicated, second offense. Wade challenges the sufficiency of the

evidence supporting the firearm conviction and the sentence imposed by the

district court.

I. Background Facts and Proceedings

From the evidence presented at trial, the court could have found the

following. Early morning on October 1, 2021, Officer Brandon French was on

stationary patrol in Jesup. Upon observing Wade’s vehicle “traveling at a high rate

of speed for [the] speed zone,” French conducted a traffic stop. Wade completed

“a delayed stop,” and French approached the vehicle. “As [French] was standing

up at the passenger side of the vehicle, [he] smelled an odor of burnt marijuana

emitting from the interior of the vehicle . . . .” French asked Wade to accompany

him to his squad car while he conducted his computer work. As the two sat “in a

more condensed area together,” French “continued to smell a strong odor of

marijuana, . . . as well as the odor of ethyl alcoholic beverage, which was emitting

from his person, that was being partially masked by the stronger odor of

marijuana.” Wade denied smoking marijuana or consuming alcohol.

Based on his observations, French conducted a search of Wade’s vehicle.

In the passenger area of the vehicle, he found a backpack that contained a 9mm

handgun and a wallet with Wade’s driver’s license. French unloaded the gun,

secured it, and brought it back to the squad car. Wade, who was on the phone,

stated, “Oh shit, he found it” when French questioned him about the gun. Wade
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acknowledged he was a felon, and he stated “if the gun was in the backpack, then

it—he didn’t know it was there.” Wade failed field sobriety tests and declined a

breath test.

The State charged Wade with possession of a firearm by a felon, a class

“D” felony, as a habitual offender, in violation of Iowa Code sections 724.26(1),

902.8, and 902.9(1)(c) (2021), and operating while intoxicated, second offense, an

aggravated misdemeanor, in violation of Iowa Code section 321J.2(2)(b). Wade

waived his right to a jury trial. The matter proceeded to a bench trial, during which

the court received evidence and heard testimony from French, Wade, and Wade’s

girlfriend. Following trial, the court found Wade guilty as charged.

Wade appealed. Additional facts will be set forth as relevant to the issues

raised on appeal.

II. Sufficiency of the Evidence

Wade challenges the sufficiency of the evidence supporting his firearm

conviction. We review his challenge for legal error. See State v. Lacey, 968

N.W.2d 792, 800 (Iowa 2021). Our sufficiency review is the same for a bench trial

as a jury trial. State v. Myers, 924 N.W.2d 823, 826 (Iowa 2019). The court’s

findings of fact have the effect of a special verdict—binding on appeal if supported

by substantial evidence. State v. Fordyce, 940 N.W.2d 419, 425 (Iowa 2020). We

view the record in the light most favorable to the court’s decision. Myers, 924

N.W.2d at 827.

Wade contends the evidence “was insufficient to prove [he] had knowledge

that the gun was present in the backpack, which is required for his conviction under

section 724.26(1).” Specifically, according to Wade, under “the factors of
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constructive possession . . . , the State failed to show [he] knowingly transported

the gun and/or exercised control and dominion over it.”

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.

Iowa Code § 724.26 (defining the offense of possession of a firearm or offensive

weapon). This statute “requires proof that an adjudicated felon has a firearm

‘knowingly . . . under the person’s dominion and control or possession.’” State v.

Reed, 875 N.W.2d 693, 708 (Iowa 2016) (quoting Iowa Code § 724.26(1)).

Wade testified the gun was owned by his girlfriend, Kasandra. He stated

Kasandra last drove his truck “[t]he night before” when she “went to work.” The

next morning, Wade “woke up, jumped in the truck, . . . and left” for work. Wade

denied using the backpack; he stated Kasandra “use[d] it for work to carry her food

in” and she also carried a gun in it. Wade testified the wallet in the backpack with

his ID was “an old wallet I don’t use.”

Kasandra testified similarly. She stated she had a permit to carry, 1 she

owned two handguns (including a 9mm), and she “carr[ied] at least one” with her

at all times. According to Kasandra, on October 1, 2021, the 9mm “was in the

backpack that [she] carried for lunch and stuff.” She stated she “forgot” the

backpack in the truck because she “was tired” when she got home from work and

she never told Wade the gun was in the backpack.

1 Kasandra’s permit was issued in January 2020, and it was valid on the date at

issue.
5

“Possession may be actual or constructive.” See id. at 705. “Actual

possession requires proof of a defendant’s physical possession of the . . . firearms

at some point in time.” See id. at 705 n.5. Constructive possession occurs when

the defendant knows of the contraband’s presence and “has the authority or right

to maintain control of it.” Id. at 705 (citation omitted). Constructive possession

may generally be inferred by a defendant’s exclusive possession of premises

where contraband is discovered. State v. DeWitt, 811 N.W.2d 460, 474 (Iowa

2012). When the premises is a vehicle not under the defendant’s exclusive control,

“we require additional evidence to connect the defendant to the controlled

substance sufficient to support a conviction for possession.” Id. at 475. Courts

consider several factors “as guides in establishing proof of possession” in

nonexclusive premises, including:

(1) incriminating statements made by the person; (2) incriminating
actions of the person upon the police’s discovery of a controlled
substance among or near the person’s personal belongings; (3) the
person’s fingerprints on the packages containing the controlled
substance; and (4) any other circumstances linking the person to the
controlled substance. Further, when the premises is a vehicle, the
court may also consider these additional factors: (1) was the
contraband in plain view; (2) was it with the person’s personal effects;
(3) was it found on the same side of the car or immediately next to
the person; (4) was the person the owner of the vehicle; and (5) was
there suspicious activity by the person.

State v. Maxwell, 743 N.W.2d 185, 194 (Iowa 2008) (internal citations omitted);

see also Reed, 875 N.W.2d at 705 (“Although the doctrine of constructive

possession evolved in drug-possession cases, we apply the same principles in

firearm cases.”). “The factors are not exclusive, and all facts and circumstances

are considered to determine whether a reasonable inference is created that the
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defendant had knowledge and control over controlled substances.” DeWitt, 811

N.W.2d at 475.

Here, the gun was found in a backpack, in the front passenger area of

Wade’s truck, and Wade was the only person in the truck that night. Kasandra

acknowledged Wade “kn[e]w that [she] always had a gun in that backpack” on her

way to and from work. And Wade acknowledged Kasandra did not have the gun

that day because “it stayed in the truck.”

In addition, when French asked Wade about the gun, Wade stated, “Oh shit,

he found it” and hesitated to admit he was a felon. Wade then told the person he

was talking to on the phone, “I’m going to be arrested. . . . I’ll call you when I get

in there.” See Reed, 875 N.W.2d at 708 (“[P]roof [of knowledge of a gun and

control over it] may consist either of evidence establishing actual knowledge by the

accused, or . . . incriminating statements or [other] circumstances from which a

jury might lawfully infer knowledge”). When French asked, “Why are you carrying

it around?” Wade responded, “I didn’t know it was in my backpack, if it was in my

backpack, because it shouldn’t have been in my truck.” Later, Wade denied the

backpack was his, but he acknowledged telling French it was his “[b]ecause

everything in my house is mine . . . .” Cf. State v. Turner, 630 N.W.2d 601, 609

(Iowa 2001) (“Although Turner denied ownership of the gun, his statements

indicated that he knew the gun was in the apartment.”). Wade’s wallet and ID were

also inside the backpack.

Considering the evidence in the light most favorable to the State, we

conclude substantial evidence supports Wade’s conviction for possession of a

firearm as a felon.
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III. Sentencing

For Wade’s operating-while-intoxicated offense, the court sentenced him to

serve two years but ordered all but seven days of the sentence suspended. For

Wade’s firearm offense, the district court sentenced him to serve an indeterminate

term not to exceed fifteen years, with a mandatory minimum of three years, and

the court suspended the prison sentence and placed Wade on supervised

probation for “two to five years.”2 On appeal, Wade claims the court “entered an

illegal sentence by failing to fix a definite term of years for probation.”

“The length of the probation shall be for a period as the court shall fix but

not to exceed five years if the offense is a felony or not to exceed two years if the

offense is a misdemeanor.” Iowa Code § 907.7(1). According to Wade, this

provision “does not authorize the district court to order [him] to complete a range

from two to five years of probation—an indefinite time period.” Focusing on the

word “fix” in section 907.7(1), Wade claims, “applying the plain language of Iowa

Code section 907.1, at the time of sentencing, the district court must firmly set a

definite amount of years that Wade will serve on probation.”

“A challenge to an illegal sentence ‘includes claims that the court lacked the

power to impose the sentence or that the sentence itself is somehow inherently

legally flawed, including claims that the sentence is outside the statutory bounds

2 The court’s written sentencing order stated:

Pursuant to Iowa Code [s]ection 907.3(3), the defendant is placed on
formal probation pursuant to Iowa Code [s]ection(s) 907.5, 907.6,
907.7 and 907.8, to the 1st Judicial District Department of
Correctional Services (“Dept.”) for a period of 2 - 5 years subject to
rules and conditions of probation imposed by the Dept. on the
probation continuum.
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or that the sentence itself is unconstitutional.’” State v. Lathrop, 781 N.W.2d 288,

293 (Iowa 2010) (citation omitted). In interpreting statutes, “[w]e give words their

ordinary meaning absent legislative definition.” State v. Davis, 922 N.W.2d 326,

330 (Iowa 2019). “In determining the ordinary and fair meaning of the statutory

language at issue, we take into consideration the language’s relationship to other

provisions of the same statute and other provisions of related statutes.” Doe v.

State, 943 N.W.2d 608, 610 (Iowa 2020); see Iowa Code § 4.1(38) (“Words and

phrases shall be construed according to the context and the approved usage of

the language . . . .”).

If the ‘text of a statute is plain and its meaning clear, we will not
search for a meaning beyond the express terms of the statute or
resort to rules of construction.’ If the language of the statute is
ambiguous or vague, we ‘may resort to other tools of statutory
interpretation.’

Doe, 943 N.W.2d at 610 (citations omitted).

Here, we can begin and end our inquiry by considering the statute as a

whole. Pursuant to section 907.7(1), “[Wade] could be ordered to be on probation

for between two years and five years.” See State v. Blanchette, No. 11-1602, 2012

WL 2411919, at *2 (Iowa Ct. App. June 27, 2012). “In determining the length of

the probation, the court shall determine what period is most likely to provide

maximum opportunity for the rehabilitation of the defendant, to allow enough time

to determine whether or not rehabilitation has been successful, and to protect the

community from further offenses by the defendant and others.” Iowa Code

§ 907.7(4). However, a court or probation officer may discharge a defendant from

probation upon a finding “that the purposes of probation have been fulfilled and

fees imposed . . . have been paid.” See id. § 907.9(1), (2); see generally State v.
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Pierce, No. 07-0496, 2008 WL 2039314 (Iowa Ct. App. May 14, 2008). And the

court may “reduce the length of the probation if the court determines that the

purposes of probation have been fulfilled and the fees imposed . . . have been

paid.” Iowa Code § 907.7(3).

Considering this language, the district court was authorized to fix probation

for a period not less than two years and not more than five years. See State v.

Fleshner, No. 22-1035, 2023 WL 5601794, at *1 (Iowa Ct. App. Aug. 30, 2023)

(noting the defendant “received a deferred judgment with two to five years of

probation supervised by the department of correctional services”); State v. Arnold,

No. 20-0915, 2021 WL 4592837, at *1 (Iowa Ct. App. Oct. 6, 2021) (noting the

defendant “received suspended prison sentences and was placed on probation to

the department of correctional services for two to five years”); State v. Jordison,

702 N.W.2d 513, 514 (Iowa Ct. App. 2005) (“[T]he extension of defendant’s

probation for more than five years from the time of sentencing is not authorized by

statute.”). It was within the court’s discretion to set a range or a specific length for

probation, so long as it fell between two and five years. Finding no error, we affirm

the sentence imposed by the court.

Upon consideration of the issues raised on appeal, we affirm Wade’s

convictions and sentences for possession of a firearm or offensive weapon by a

felon as a habitual offender and operating while intoxicated, second offense.

AFFIRMED.