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State v. Riko

Court of Appeals of Iowa

April 17, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
ABRAHAM PETRO RIKO, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.

         Abraham Riko appeals from judgment and sentence following his convictions for second-degree theft (two counts), assault on a peace officer, and first-degree eluding.

          Karmen Anderson of Anderson & Taylor, P.L.L.C, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney General, for appellee.

          Considered by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J. [*]

          DANILSON, SENIOR JUDGE.

         Abraham 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.

         On 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.[1] 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.").

         Sufficiency 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).

         Viewing 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. [2] Officers gave chase but were unable to apprehend the person.

         Minutes 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.[3] 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 continued.

         The 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 white shoes.

         Riko 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.

         Ineffective-assistance-of-counsel 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.[4] 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 ...


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