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State v. Moncivaiz

Court of Appeals of Iowa

September 13, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
ROMAN JACOB MONCIVAIZ, Defendant-Appellant.

         Appeal from the Iowa District Court for Story County, Timothy J. Finn, Judge.

         A defendant challenges his judgment and sentence for robbery in the first degree and assault with the intent to inflict serious injury.

          Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Richard Bennett (until withdrawal) and Kevin Cmelik, Assistant Attorneys General, for appellee.

          Considered by Vogel, P.J., Potterfield, J., and Scott, S.J.

          VOGEL, PRESIDING JUDGE.

         Roman 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.

         I. Background Facts and Proceedings

         On 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.

         A 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.

         After 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 male."

         On October 8, 2015, the State charged Moncivaiz with attempt to commit murder and robbery in the first degree.[1] 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.

         II. Standard of Review

         We 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).

         III. Sufficiency of the Evidence

         Monciviaz 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, ...


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