State of Iowa v. Donovan Lee Erickson

• Court: Court of Appeals of Iowa
• Decided: March 19, 2025
• Docket: 24-0049
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 24-0049 Filed March 19, 2025

STATE OF IOWA, Plaintiff-Appellee,

vs.

DONOVAN LEE ERICKSON, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Boone County, Amy M. Moore,

Judge.

A criminal defendant appeals his convictions and sentence for

domestic-abuse-assault offenses and felon in possession of a firearm. AFFIRMED

AND REMANDED WITH DIRECTIONS TO ENTER NUNC PRO TUNC ORDER.

Martha J. Lucey, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Katherine Wenman, Assistant Attorney

General, for appellee.

Considered by Greer, P.J., and Buller and Langholz, JJ. 2

BULLER, Judge.

Donovan Erickson appeals following his convictions for

domestic-abuse-assault offenses and felon in possession of a firearm. He argues

he was entitled to a necessity instruction on the firearm charge because he claimed

he was moving the gun from a table where children might access it. And the parties

stipulate to an error in the sentencing order. Finding no legal error in the district

court’s denial of the necessity instruction and that a nunc pro tunc order is

appropriate to address the sentencing issue, we affirm and remand with directions

to enter a nunc pro tunc order.

Background Facts and Proceedings. Most of the evidence adduced at

trial concerns the domestic-abuse-assault convictions. But Erickson does not

challenge those convictions on appeal. So we discuss only the facts relevant to

the felon-in-possession charge, recognizing there was substantial record evidence

Erickson strangled and otherwise violently assaulted the victim.

After law enforcement responded to the victim’s 911 call, she told deputy

sheriffs that Erickson said he took a 9mm pistol from her car and put it on top of

the refrigerator in the house. Deputies found the gun on the top of the refrigerator.

Donovan stipulated he was prohibited from possessing firearms because

he was a felon. He admitted to moving the gun and holding it in his hand, but said

he did so because he was worried a child could reach it on the table (where he

claimed to have found it).

After he testified, Erickson requested the jury be instructed on the necessity

defense with regard to the felon-in-possession count. The district court denied the

request, finding Erickson had not generated a fact question on the defense’s 3

applicability because his testimony on the alleged danger of a child accessing the

gun was “quite honestly nowhere close” to the level of “emergency imminent

danger.”

The jury found Erickson guilty of domestic abuse assault—third or

subsequent offense, a class “D” felony in violation of Iowa Code section 708.2A(1)

and (4) (2023); domestic abuse assault causing bodily injury, an aggravated

misdemeanor in violation of section 708.2A(1) and (2)(b); and felon in possession

of a firearm, a class “D” felony in violation of section 724.26(1), as a habitual

offender in violation of section 902.8. The district court sentenced Erickson to

prison, and he appeals.

Necessity-Defense Instruction. It is an open question whether necessity

is a defense to possession of a firearm by a prohibited person in Iowa. But we

need not resolve the question today. Instead, we follow the approach taken by our

supreme court more than forty years ago, and “[f]or the purposes of this case” we

“assume the necessity defense may be available to a felon” possessing a firearm.

State v. Walton, 311 N.W.2d 113, 115 (Iowa 1981) (also noting the court’s

skepticism of a case where the defense would be viable).

We review claims on jury instructions for correction of errors at law. State

v. Huser, 894 N.W.2d 472, 501 (Iowa 2017). If an affirmative defense is supported

by substantial evidence, the court must instruct on it. See State v. Kuhse, 937

N.W.2d 622, 628 (Iowa 2020).

Assuming without deciding the necessity defense was available, Erickson

had to put forward evidence sufficient to generate a fact question that he faced an

“emergency situation[] where the threatened harm is immediate and the threatened 4

disaster imminent.” Walton, 311 N.W.2d at 115. And he had to offer evidence that

he was “stripped of options by which he . . . might avoid both evils.” Id. We agree

with the district court that Erickson did not generate a fact question warranting the

instruction. Neither Erickson nor any other witness testified that the gun on the

table was in the immediate reach of any child or that a child grabbing the gun was

imminent. Nor did any witness testify that Erickson lacked other options; as the

State suggests on appeal, he could have stood watch over the gun until a

non-prohibited adult moved it. We affirm that, even if the jury were to credit

Erickson’s testimony, his fear was of a generalized nature concerning a future

hypothetical danger, rather than the concrete immediate harm and imminent

danger required to invoke the necessity defense. If Erickson’s testimony was

truthful, we recognize he believed he did the right thing in moving the gun; but good

intentions do not always amount to legal necessity or excuse criminal conduct. We

hold the district court did not err in declining to instruct the jury on necessity.

Sentencing. Erickson notes a discrepancy between the

aggravated-misdemeanor fine ordered by the court orally ($430) and in writing

($1025), and he requests a remand for a nunc pro tunc order to correct the error.

The State concedes error, recognizing the $430 amount is correct, and agrees a

nunc pro tunc order is appropriate. See State v. Hess, 533 N.W.2d 525, 527

(Iowa 1995). We accept the concession as supported by the law, and we remand

with directions for the district court to issue a nunc pro tunc order conforming its

written sentencing order to the verbal pronouncement.

AFFIRMED AND REMANDED WITH DIRECTIONS TO ENTER NUNC

PRO TUNC ORDER.