from the Iowa District Court for Polk County, Robert J.
Riko appeals from judgment and sentence following his
convictions for second-degree theft (two counts), assault on
a peace officer, and first-degree eluding.
Anderson of Anderson & Taylor, P.L.L.C, Des Moines, for
J. Miller, Attorney General, and Zachary Miller, Assistant
Attorney General, for appellee.
Considered by Vogel, C.J., Vaitheswaran, J., and Danilson,
DANILSON, SENIOR JUDGE.
Riko appeals from judgment and sentence following his
convictions for second-degree theft (two counts), in
violation of Iowa Code section 714.1(4) and 714.2(2) (2016);
assault on a peace officer, in violation of sections
708.1(2)(a) and 708.3A(4); and first-degree eluding, in
violation of section 321.279(3). He alleges there is
insufficient evidence to support the charges and trial
counsel was ineffective in failing to object to a jury
instruction on the elements of eluding that included the
phrase "and/or." We affirm.
appeal, Riko asserts there is insufficient evidence (1) that
he was "the driver of the Toyota Camry," (2) that
he "knew the vehicle(s) were stolen," and (3) that
he "was participating in a felony" as required for
first-degree eluding. Only the first of these claims was
adequately preserved for our review. See State v.
Williams, 695 N.W.2d 23, 27 (Iowa 2005) ("[W]hen
the motion for judgment of acquittal did not make reference
to the specific elements of the crime on which the evidence
was claimed to be insufficient, it did not preserve the
sufficiency of the evidence issue for review.").
of the evidence of identity. We review the sufficiency
of the evidence for correction of errors at law. State v.
Kelso-Christy, 911 N.W.2d 663, 666 (Iowa 2018).
"[W]e examine whether, taken in the light most favorable
to the State, the finding of guilt is supported by
substantial evidence in the record." State v.
Meyers, 799 N.W.2d 132, 138 (Iowa 2011).
"Substantial evidence exists when the evidence
'would convince a rational fact finder the defendant is
guilty beyond a reasonable doubt.'"
Kelso-Christy, 911 N.W.2d at 666 (citation omitted).
the evidence in the light most favorable to the State, the
record shows that on December 22, 2016, Des Moines Police
Officer Linda Powers observed two men in a stolen Hyundai
Sante Fe in a parking lot at the 700 block of East Fifth
Street, Des Moines. She ordered both men out of the vehicle.
The passenger, who was wearing a dark jacket and dark jeans,
got out of the front passenger side of the vehicle and walked
away, was not pursued by Powers, and was not seen again. The
person in the driver's side of the Sante Fe exited the
car holding a computer, which he threw at the officer, and
then ran northbound across the pedestrian bridge over the
freeway. This person was wearing dark jeans, a distinctive
white belt, red shoes, and a red jacket.  Officers gave
chase but were unable to apprehend the person.
later, a retired police officer who was in an unmarked car
spotted a Toyota Camry that had been reported stolen. The
officer called dispatch and followed the Camry until
uniformed officers in marked vehicles could respond. Des
Moines Police Officer Eric Morris responded and attempted to
stop the Camry near Hickman Road and Sixth Avenue. Instead,
the driver of the Camry sped away, at times going more than
twenty-five miles an hour over the speed limit; drove through
stop signs; and drove on the wrong side of the street. When
the Camry went into an alleyway just north of the freeway and
Sixth Avenue, Officer Morris and another responding officer,
Jerald Fisher, attempted to set up a PIT
maneuver. Officer Morris struck the back of the
Camry, which spun 180 degrees, and was now generally facing
both officers' vehicles. Instead of stopping, the Camry
crashed through both vehicles and drove away. The chase
driver of the Camry lost control, and the vehicle left the
road near the intersection of Cleveland and Idaho Streets.
The driver of the Camry abandoned the vehicle and fled on
foot in a northeasterly direction. Officer Kelly Drane was
one of the officers chasing the Camry. The audio from her
patrol car includes a description of the person running from
the Camry as a black male wearing a dark jacket and dark
jeans. About one-half block from where the Camry crashed,
Riko was found hiding in a garbage can by Officer Alycia
Peterson. Officers Fisher and Morris arrived at the scene and
identified the man as the driver of the Camry. Riko's
fingerprint was found on the computer thrown at Officer
Powers. A photo taken of Riko upon his arrest shows he was
wearing dark jeans, a distinctive white belt, and red and
challenges Officers Fisher's and Morris's
identification of him, noting they saw his face for just
seconds. Nonetheless, Officers Morris and Fisher positively
identified Riko as the driver of the Camry. Riko was found
one-half mile from the crashed Camry, hiding in a garbage
can. His flight and hiding are factors from which the jury
could infer he was the driver. See State v. Wilson,
878 N.W.2d 203, 211 (Iowa 2016) ("It is well-settled law
that the act of avoiding law enforcement after a crime has
been committed may constitute circumstantial evidence of
consciousness of guilt that is probative of guilt
itself."). We conclude there is substantial evidence
from which a reasonable jury could find Riko was the driver
of the Camry.
claims. In his reply brief, Riko notes the second
insufficiency claim was raised in the motion for new trial,
and acknowledges the third claim was not made at trial. He
asks that if they were not properly preserved, we address the
claims under the rubric of ineffective assistance of
counsel. Thus, we are presented with three claims
of ineffectiveness. Riko asserts counsel was ineffective in
(1) failing to challenge the sufficiency of the evidence that
"[he] knew the vehicle(s) were stolen," (2) failing
to challenge the sufficiency of the evidence that he
"was participating in a felony" as required for
first-degree eluding, and (3) failing to object to the jury
instruction on eluding, which ...