from the Iowa District Court for Mahaska County, Randy S.
defendant challenges his conviction for operating while
intoxicated, second offense. AFFIRMED.
C. Smith, State Appellate Defender, and Maria L. Ruhtenberg,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
POTTERFIELD, Presiding Judge.
Sams appeals from his conviction for operating while
intoxicated, second offense. Sams maintains he received
ineffective assistance from trial counsel. Specifically, he
maintains counsel was ineffective for failing to make a
motion for judgment of acquittal specifically challenging the
sufficiency of the evidence to support the jury's finding
that Sams was under the influence of alcohol when he was
stopped in his vehicle by a police officer.
succeed on a claim of ineffective assistance, Sams has the
burden to establish "by a preponderance of the evidence:
(1) trial counsel failed to perform an essential duty, and
(2) this failure resulted in prejudice." State v.
Williams, 695 N.W.2d 23, 29 (Iowa 2005). Here, the
record is adequate to address the claim on direct appeal.
See State v. Truesdell, 679 N.W.2d 611, 616 (Iowa
2004) ("Clearly, if the record in this case fails to
reveal substantial evidence to support the conviction,
counsel was ineffective for failing to properly raise the
issue and prejudice resulted. On the other hand, if the
record reveals substantial evidence, counsel's failure to
raise the claim of error could not be prejudicial.
Consequently, the claim of ineffective assistance of counsel
in this case can and should be addressed on direct
appeal."). Our review is de novo. Id. at 615.
is no dispute that Sams was operating a vehicle when he was
stopped by a police officer; Sams was initially stopped for
driving thirty-five miles per hour in a speed zone that
allowed only twenty-five miles per hour. The issue for the
jury was whether Sams was under the influence while doing so.
The jury was instructed as follows:
A person is "under the influence" when, by drinking
liquor and/or beer, one or more of the following is true:
1. His reason or mental ability has been affected.
2. His judgment is impaired.
3. His emotions are visibly excited.
4. He has, to any extent, lost control of bodily actions or