from the Iowa District Court for Story County, Timothy J.
defendant challenges his judgment and sentence for robbery in
the first degree and assault with the intent to inflict
C. Smith, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Richard Bennett (until
withdrawal) and Kevin Cmelik, Assistant Attorneys General,
Considered by Vogel, P.J., Potterfield, J., and Scott, S.J.
Moncivaiz appeals from his convictions for robbery in the
first degree, in violation of Iowa Code sections 711.1(1)(b)
and 711.2 (2014), and assault with intent to inflict serious
injury, in violation of Iowa Code sections 708.1(2) and
708.2(1). Moncivaiz asserts two claims on appeal: (1) there
is insufficient evidence supporting his convictions; and (2)
trial counsel was ineffective for failing to object to
improper closing argument. We find there was sufficient
evidence to support the jury's verdict. We further find
counsel did not breach an essential duty, thus counsel is not
ineffective for failing to object to the closing argument.
Therefore, we affirm.
Background Facts and Proceedings
October 19, 2014, Bryan Cox returned to his apartment between
approximately 1:30 a.m. and 2:30 a.m. after being out with
friends. As he approached his apartment, he saw Moncivaiz and
another man, later identified as Anthony Hinton, standing
near the front door. Moncivaiz owed Cox money from a previous
drug transaction, so Cox invited him into his apartment. He
asked Hinton to wait in the vestibule of the building. Cox
then locked the door after entering his apartment with
Moncivaiz. Soon after Moncivaiz and Cox entered the
apartment, Hinton kicked in the door of the unit demanding,
"Where is it!?" Hinton attacked Cox, and Moncivaiz
"balled up his fist" and joined in the attack.
neighbor found Cox later in the day after noticing blood on
the apartment building hallway wall and Cox's door
standing slightly ajar. She observed wounds on Cox including
a stab-wound on Cox's head. The next day, Cox's
mother visited the apartment and observed multiple
stab-wounds on Cox.
being transported and evaluated at the local hospital, Cox
was transferred to a Des Moines hospital and treated for
wounds on his back, shoulder, and neck. Cox's diaphragm
was repaired, and a portion of his colon was removed. He also
underwent brain surgery to mend a skull penetration. In all,
he was hospitalized for three weeks. Cox made several
statements shortly after the attack to various individuals,
including his neighbor, his mother, and the police. The
statements either conveyed that "two guys" or
"they" had attacked and stabbed him, or more
specifically mentioned "Rome" and "a black
October 8, 2015, the State charged Moncivaiz with attempt to
commit murder and robbery in the first degree. All charges were
tried before a jury. He was found guilty of robbery in the
first degree and assault with the intent to inflict serious
injury, a lesser-included offense of attempted murder, and he
was sentenced to indeterminate prison terms of twenty-five
years on the robbery conviction and two years on the assault
conviction. The sentences were ordered to be served
consecutively. Moncivaiz now appeals.
Standard of Review
review sufficiency-of-the-evidence claims for correction of
errors at law. State v. Brubaker, 805 N.W.2d 164,
171 (Iowa 2011). We review claims of ineffective assistance
of counsel de novo. State v. Truesdell, 679 N.W.2d
611, 615 (Iowa 2004).
Sufficiency of the Evidence
and the State agree the claims raised on appeal have not been
preserved due to the failure of trial counsel to specify them
in the motion in arrest of judgment and motion for new trial.
However, Moncivaiz challenges the sufficiency of the evidence
in the context of an ineffective-assistance-of-counsel claim.
Such claims are an exception to the traditional
error-preservation rules. See State v. Fountain, 786
N.W.2d 260, 262-63 (Iowa 2010). As the State notes, if there
is sufficient evidence to support the verdicts, counsel
cannot be found to be ineffective for failing to make a more
specific argument in his motion for judgment of acquittal.
Truesdell, 679 N.W.2d at 616 ("A claim of
ineffective assistance of trial counsel based on the failure
of counsel to raise a claim of insufficient evidence to
support a conviction is a matter that normally can be decided
on direct appeal. Clearly, if the record in this case fails
to reveal substantial evidence to support the convictions,