from the Iowa District Court for Black Hawk County, David P.
challenges his convictions for robbery in the first degree,
going armed with intent, carrying weapons, and making a false
report to law enforcement. AFFIRMED.
C. Smith, State Appellate Defender, and Martha J. Lucey,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Tyler J. Buller, Assistant
Attorney General, for appellee.
by Doyle, P.J., and Tabor and McDonald, JJ.
Jones was convicted of robbery in the first degree, in
violation of Iowa Code section 711.2 (2016), going armed with
intent, in violation of Iowa Code section 708.8, carrying
weapons, in violation of Iowa Code section 724.4, and making
a false report to law enforcement, in violation of Iowa Code
section 718.6. In this appeal, Jones challenges the
sufficiency of the evidence supporting his convictions,
alleges trial counsel provided constitutionally deficient
representation in several respects, and contends the district
court applied the wrong legal standard in denying his motion
for new trial.
case arises out of the robbery of a convenience store in
Waterloo. On the evening of November 18, 2016, at
approximately 9:38 p.m., a man robbed a convenience store at
gunpoint. The robber wore a hooded sweatshirt, and his face
was covered. During the course of the robbery-lasting but a
minute-the store manager and the robber exchanged gunfire.
The robber subsequently fled the scene.
enforcement arrived quickly at the convenience store in
response to a silent alarm. The store manager told the
officers he did not get a good look at the robber. The
manager described the robber as a light-skinned black man
approximately 5'8" to 6' tall. Investigator
Nicholas Sadd was familiar with the store and knew the store
had surveillance cameras. He requested to view the
surveillance footage. Upon reviewing the footage,
Investigator Sadd noted the suspect wore a black hooded
sweatshirt, blue boxers, a black belt with white
discoloration, faded blue jeans, and white or black sneakers.
Investigator Sadd and other officers also observed the robber
may have been shot during the exchange of gunfire. The
officers' belief the suspect may have been shot was based
on the suspect's movement, reaction, and immediate
withdrawal from the store. However, there was no blood at the
scene. Officers recovered several bullet casings and bullets
from the scene. Several came from the store manager's
.380 caliber handgun, and others were from a 9mm handgun.
Based on the surveillance video, police believed the suspect
may have left a palm print or fingerprint at the scene. The
surveillance video showed there were two glass doors at the
front of the store. One of the doors was locked. When the
robber exited the store, he first tried to push open the
locked door with his hand. Finding the door locked, the
robber then exited through the second, unlocked door.
pm, approximately fifteen minutes after the robbery, officers
received a call from dispatch regarding a reported shooting
at nearby Eighth and Leavitt Streets. The site of the
reported shooting was a five- to ten-minute drive from the
convenience store. Several officers left the convenience
store to respond to the call. They found a man, Charles
Jones, on the ground. Jones told officers a black male with
dreadlocks came up behind him, held a gun to him, and stole
his headphones, cellphone, and coat. Jones told police he was
shot during the struggle over the coat. The injury was in the
right armpit area. Jones was wearing a white basketball
jersey, faded jeans, a belt with white discoloration, and
blue boxers. Jones was taken to the hospital for treatment.
Officers remained behind to process the scene. They found no
bullets, casings, blood, or signs of a struggle. Several
witnesses described hearing three to four gunshots, but no
one witnessed the reported robbery. Two witnesses reported
seeing a man in a white shirt run or walk away from the scene
and get into a car. Neither witness saw the man carrying a
gun or headphones.
officers fairly quickly tumbled to the conclusion Jones was
the robber. They spoke with Jones at the hospital. Jones told
officers he had been either at his girlfriend's house or
his parent's house and then had visited the home of a
family friend he referred to as "Mama Poo." After
leaving Mama Poo's house, Jones walked to Irving Middle
School to try and access the school's Wi-Fi network to
stream music on his phone. Jones told officers he walked
around the building but was unable to access the school's
Wi-Fi network. He left the school and walked to a
friend's apartment, but his friend was not home.
According to Jones, he began walking home while listening to
his music. He told officers he was accosted near Eighth and
Leavitt while on his way home. Officers asked Jones whether
they could perform a gunshot residue test of his hands. Jones
told the officers he would have powder on his hands from
wrestling with his assailant over the coat. The officers told
him they still wanted to proceed with the test. In response,
Jones told the officers he would have residue on his hands
because he had fired guns the previous day in Cedar Falls.
Jones claimed he met a man, who he knew only as John, in a
bar. According to Jones, the two left the bar to smoke
marijuana and shoot guns into the grass near John's home.
Jones told the officers he had not bathed or washed his hands
since that time, nearly twenty-four hours prior. Based on
Jones's admission he would have gun powder residue on his
hands, the officers decided against conducting the test.
officers continued to investigate the matter. Upon
questioning, Mama Poo could not remember Jones being at her
house on the night in question, although she admitted she has
memory loss stemming from an injury. Officers obtained
surveillance video from Irving Middle School. The
surveillance video from the middle school did not show Jones
at the school on the night in question. The officers spoke to
Jones's girlfriend. Jones told the officers his
girlfriend had purchased the now-allegedly stolen headphones
for him. Jones's girlfriend did not corroborate that she
bought Jones the headphones. The police developed a palm
print from the spot on the locked glass door where the robber
put his hand. The palm print matched Jones.
was arrested and charged in connection with the robbery. A
jury found him guilty as charged. He was sentenced to
indeterminate terms of incarceration not to exceed
twenty-five years for robbery, five years for going armed
with intent, two years for carrying weapons, and thirty days
for making a false report, said sentences to be served
first challenges the sufficiency of the evidence supporting
the four convictions. Specifically, Jones contends there is
not sufficient evidence of identity to support the
convictions for robbery in the first degree, going armed with
intent, and carrying weapons. Relatedly, he contends if there
was insufficient evidence he was the robber of the
convenience store, then there is also insufficient evidence
to establish he made a false report of being robbed.
standard of review is well-established. This court will
affirm the jury's verdict if substantial record evidence
supports it. See State v. Webb, 648 N.W.2d 72, 75
(Iowa 2002). "Evidence is substantial if it would
convince a rational fact finder that the defendant is guilty
beyond a reasonable doubt." Id. at 75-76. When
reviewing for the sufficiency of the evidence, this court
views the evidence in the light most favorable to the State
but considers all evidence in the record. Id. at 76.
"The State must prove every fact necessary to constitute
the crime with which the defendant is charged. The evidence
must raise a fair inference of guilt and do more than create
speculation, suspicion, or conjecture." Id.
(internal citations omitted).
State contends error was not preserved with respect to count
four, making a false report to law enforcement, because the
defendant did not specifically challenge the relevant
elements. "[I]n order to preserve error on a motion to
acquit, the defendant must specifically identify the elements
for which there was insufficient evidence." State v.
Schories, 827 N.W.2d 659, 664 (Iowa 2013). However,
"the question of preservation hardly matters because
[appellant] may raise the issue through a claim of
ineffective assistance of counsel. It would surely be
ineffective under the standards announced in Strickland
v. Washington, 466 U.S. 668 (1984), if  counsel failed
to preserve a valid motion for acquittal based on the
State's lack of substantial evidence tending to prove
the elements." Id. Here, the defendant raises
his claim within an ineffective-assistance framework, and we
address the claim on the merits.
the evidence is viewed in the light most favorable to the
jury's verdict, there is substantial evidence in support
of the convictions. High quality surveillance video was
obtained from the convenience store. The video showed the
robber wore blue boxer shorts, faded jeans, and a belt with
white discoloration. Officers testified the video showed the
store manager shot the robber in an area near the right
armpit. The officers' testimony was based on their
observation of the surveillance footage that showed the
robber had his right arm extended while firing his weapon and
then suddenly recoiled and quickly fled the scene during the
gunfight. The video also showed the suspect placed his hand
on a glass door while attempting to flee the scene.
Investigators obtained a palm print from the same spot, and
the print matched Jones's palm print. Jones was found
fifteen minutes after the robbery, only a short distance from
the convenience store. He was wearing blue boxer shorts,
faded jeans, and a belt with white discoloration marks
consistent with that shown in the surveillance video. One
officer testified regarding his experience with suspects
changing clothes after committing a crime, testifying it was
easier for a suspect to change his or her shirt rather than
his or her underwear and jeans. Jones had a gunshot wound in
his right armpit area. Investigator Sadd testified it would
be difficult for Jones to have been shot in the armpit area
if Jones's story were true. Local hospitals also did not
report treating any other victim of a gunshot wound on the
night in question. There was no evidence of casings, blood,
or a struggle at Eighth and Leavitt. There were no witnesses
to Jones being attacked, only to the sound of gunshots.
Surveillance video from the school did not corroborate
Jones's version of events on the night in question.
in our standard of review of jury verdicts in criminal cases
is the recognition that the jury [is] free to reject certain
evidence and credit other evidence." State v.
Nitcher, 720 N.W.2d 547, 556 (Iowa 2006). The jury was
free to disbelieve Jones's version of events and conclude
he committed the robbery and filed a police report to cover
up the actual cause of his injury. We will not disturb the
jury's verdict on this record.
his appellate brief and pro se brief, Jones raises seven
claims of ineffective assistance of counsel. We review de
novo claims of ineffective assistance of counsel. See
Everett v. State,789 N.W.2d 151, 155 (Iowa 2010). To
succeed on an ineffective-assistance claim a defendant must
show "(1) counsel failed to perform an essential duty;
and (2) prejudice resulted." State v. Maxwell,743 N.W.2d 185, 195 (Iowa 2008). With respect to the first
element, "we measure counsel's performance against
the standard of a reasonably competent practitioner."
Id. Poor strategy or mistakes in judgment normally
do not rise to the level of ineffective assistance. See
Ledezma v. State,626 N.W.2d 134, 143 (Iowa 2001).
"The failure of trial counsel to preserve error at trial
can support an ineffective assistance of counsel claim."
State v. Truesdell,679 N.W.2d 611, 615-16 (Iowa
2004). With respect to prejudice, the defendant must prove
"that counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is
reliable." Strickland, 466 U.S. at 687. It is
not enough that the applicant show the error had only some
effect on the outcome, as nearly any act or omission by
counsel results in some change to the outcome one way or
another, but not necessarily in a way that would undermine
its reliability. See id. at 693. Rather, "[t]he
defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the ...