                     IN THE COURT OF APPEALS OF IOWA

                                     No. 16-0590
                                  Filed May 3, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

VERNARD ARCHER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Sean W.

McPartland, Judge.



      Vernard Archer appeals his convictions for first-degree burglary, assault

while using a dangerous weapon, and third-degree sexual abuse. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
                                             2


DOYLE, Judge.

       Vernard Archer appeals his convictions for first-degree burglary, assault

while using a dangerous weapon, and third-degree sexual abuse.                       Archer

contends his trial counsel was ineffective for failing to move to suppress the

“show up” identification procedure,1 which he alleges violated his due process

rights under the Iowa Constitution, and for failing to present expert testimony or

request a jury instruction regarding the limitations of eyewitness identification.

Archer also argues his counsel was ineffective in failing to challenge the

sufficiency of the evidence supporting his sex-abuse conviction. Because Archer

has failed to prove the alleged deficiencies in his trial counsel’s performance

prejudiced him, we affirm.

       I. Background Facts and Proceedings.

       On December 7, 2014, E.W. was sleeping on a living room couch in her

boyfriend’s Iowa City apartment when she awoke at an early morning hour to find

a strange man in the room. The room was dim, lit by two or three miniature

Christmas trees, Christmas lighting strung up along the ceiling of the apartment,

a light on the stove, and lights from outdoors. Although E.W. was not wearing

her glasses, she “briefly” got a good look at the intruder’s face before he attacked

her and pinned her against the couch with her knees on the floor and her torso

and face on the couch. The intruder crouched over her with his knees also on

the ground and his whole body over hers. The intruder warned E.W., “Bitch I will


1
  A “show up” identification “is an out-of-court pretrial identification procedure in which a
suspect is presented singly to a witness for identification purposes.” State v. Dubose,
699 N.W.2d 582, 585 n.1 (Wis. 2005) (quoting State v. Wolverton, 533 N.W.2d 167, 177
n.21 (Wis. 1995)).
                                         3


kill you” if she screamed and he placed a knife against her neck. Through her

jeans, E.W. could feel his erect penis rubbing against her buttocks and genital

area. He was rocking back and forth in kind of a grinding motion, breathing

heavily in her ear, and saying that he would kill her. After about two minutes of

this, E.W. screamed and the intruder pressed the knife harder into E.W.’s neck.

The intruder tackled E.W. to the ground and the knife went in harder. A noise

came from a bedroom, and the intruder froze. When E.W.’s boyfriend came out

of his bedroom, the intruder stood up, turned for the door, and ran out. E.W. told

her boyfriend what happened, and one of his roommates immediately called 911.

The call was made at 4:45:34 a.m.

       In the 911 call, the intruder was described as a fat black male, around

5’8”-5’9” in height, wearing a black hoodie, jeans, and a “creepy” clear plastic

mask. Police officers were on the scene in minutes. E.W. described the intruder

as a heavy-set black male, about 5’8” in height, wearing a dark black Carhartt-

style coat with a hood, a clear mask, a yellow undershirt, and a beanie hat.

      Officers began looking for the suspect in the vicinity of the apartment. A

short time later, two campus officers from the University of Iowa Police

Department located and detained a suspect of possible interest—a black male

who was near the location of the apartment. E.W. was taken to the location of

the detainee. When she saw the individual, she immediately knew he was not

the intruder, and she told the officers this. She told the officers the detainee was

too tall, too thin, and his skin tone too light.     E.W.’s boyfriend was taken

separately to the location. He was not sure if the individual was the one he saw
                                        4


in the apartment. E.W. and her boyfriend were then taken back to the apartment,

and the subject was let go.

      In the meantime, at 5:22 a.m., about six blocks from the apartment,

another officer looking for the suspect saw a person matching the description of

the suspect. He was wearing a Carhartt-style jacket, a hooded coat under the

jacket, and a yellow shirt. The officer stopped the person, who identified himself

as Archer.

      E.W. was taken to the location where Archer was detained. She viewed

Archer from across the street while he was struggling with officers and

immediately identified him. When she saw Archer, she told officers, “That’s him.”

She said she was “a hundred percent sure.” E.W.’s boyfriend was also taken to

the location but was unable to say if Archer was the person he saw running out of

the apartment. Archer was arrested. A knife bearing E.W.’s DNA was later

found in a courtyard adjacent to the apartment building.

      Archer was charged with burglary in the first degree, a class “B” felony, in

violation of Iowa Code sections 713.1, 713.3(1)(c) and 713.2 (2015), assault

while displaying a dangerous weapon, an aggravated misdemeanor, in violation

of section 708.2(3), and sexual abuse in the third degree, a class “C” felony, in

violation of sections 709.1(1), 709.4(1) and 702.17. A jury found Archer guilty as

charged. He now appeals, contending his trial counsel was ineffective in failing

to move to suppress the identification procedure under the Iowa Constitution and

in failing to call an expert or request an instruction regarding eyewitness

testimony.   He also contends his trial counsel was ineffective in failing to
                                          5


challenge the sufficiency of the evidence to establish that he committed a “sex

act.”

        II. Standard of Review.

        We review ineffective-assistance-of-counsel claims de novo. See State v.

Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). Generally, we prefer to preserve

ineffective-assistance claims for postconviction-relief proceedings, but we may

resolve such claims on direct appeal if the record is sufficient. See State v.

Johnson, 784 N.W.2d 192, 198 (Iowa 2010). We find the record is sufficient in

this case.

        III. Ineffective Assistance of Trial Counsel.

        To prove his claim of ineffective assistance of counsel, Archer must show:

(1) his counsel failed to perform an essential duty; and (2) this failure resulted in

prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984); State v.

Halverson, 857 N.W.2d 632, 635 (Iowa 2015). Archer must prove both of these

elements by a preponderance of the evidence to prevail, and we may affirm on

appeal if either element is lacking. See Strickland, 466 U.S. at 687. To show

prejudice, Archer “must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.   A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694.

        A. Show-up identification procedure.

        Archer argues his counsel was ineffective for failing to move to exclude

the identification on state due process grounds. Iowa courts have adopted the

federal “reliability” standard to determine the admissibility of an out-of-court
                                             6

identification. See State v. Folkerts, 703 N.W.2d 761, 763-64 (Iowa 2005); State

v. Webb, 516 N.W.2d 824, 829-30 (Iowa 1994). Under this standard, the court

must determine: (1) if the out-of-court identification procedure was impermissibly

suggestive; and (2) if so, whether the procedure gave rise to “a very substantial

likelihood of irreparable misidentification” under the totality of the circumstances.

Manson v. Brathwaite, 432 U.S. 98, 116 (1977) (quoting Simmons v. United

States, 390 U.S. 377, 384 (1968)).          While conceding that Iowa courts have

embraced the federal approach, Archer lobbies for a move to the “necessity”

standard followed in Wisconsin in light of continuing scientific research on the

reliability of eyewitness identification and the Iowa Constitution’s significant

protections of individual rights.2     Under the “necessity” standard, out-of-court


2
 The routing statement in the appellant’s brief asks for our supreme court to retain this
appeal because it involves a substantial issue of first impression in Iowa, but the
supreme court transferred the case to us.
        This issue has been presented to us previously. In State v. Williams, No. 10-
1254, 2011 WL 5394366, at *1 (Iowa Ct. App. Nov. 9, 2011), after his conviction for
robbery in the first degree, Williams appealed on the grounds his trial counsel was
ineffective for failing to file a motion to suppress the show-up identification used in his
case. Like Archer, Williams argued for the adoption of Wisconsin’s rule regarding show-
up-identification procedures. Williams, 2011 WL 5394366, at *3. This court declined to
reach the issue of whether Iowa should adopt Wisconsin’s standard and instead
resolved the matter on prejudice grounds. Id. We noted other evidence presented at
trial undermined Williams’s prejudice claim, such as video surveillance independently
showing the robber wearing clothing matching Williams’s clothing, Williams ignoring the
police when ordered to stop, the discovery of a knife in the snow bank where Williams
had fallen similar to the knife observed by the victim, and the discovery Williams’s
pockets contained an amount of change consistent with the amount the victim had
reported stolen. Id. at *4. Application for further review was denied by the supreme
court.
        Similarly, in State v. Neal, No. 15-0886, 2016 WL 4384621, at *1 (Iowa Ct. App.
Aug. 17, 2016), after his conviction for robbery in the first degree and felon in possession
of a firearm, Neal appealed on the grounds his counsel failed to perform an essential
duty when she did not move to exclude the pre-trial show-up identification on state due
process grounds. Neal, 2016 WL 4384621 at *2. Like Archer, Neal argued for the
adoption of Wisconsin’s rule regarding show-up-identification procedures. Id. This court
declined to reach the issue of whether Iowa should adopt Wisconsin’s standard and
instead resolved the matter on prejudice grounds. Id. at *3. We noted other evidence
                                           7


show-up identifications are “inherently suggestive” and inadmissible unless the

show-up-identification procedure was necessary under the totality of the

circumstances. See Dubose, 699 N.W.2d at 593-94.

       We need not address the issue of trial counsel’s failure to perform an

essential duty because Archer has not shown he was prejudiced by the alleged

breach. To prove prejudice, Archer must demonstrate a reasonable probability

that, “but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Halverson, 857 N.W.2d at 639 (quoting Strickland, 466

U.S. at 694). In making this determination, we consider the evidence as a whole

as well as the extent of the effect of counsel’s purported error on the overall trial.

See State v. Graves, 668 N.W.2d 860, 882-83 (Iowa 2003).

       To analyze the prejudice prong, we turn to the evidence considered by the

jury in this matter. The identifications took place shortly after E.W.’s assault.

The officers drove E.W. separately from her boyfriend to the location so the

couple would not influence each other. E.W. was instructed by the officer that

       there’s no indication that the person we’ve stopped is involved in
       this particular criminal activity that they witnessed or any criminal
       activity. We tell them also that it is just as important to clear an
       innocent person as it is to find a guilty person . . . .

E.W.’s identification of Archer came after she told officers that the detainee at the

first location was definitely not the person who assaulted her in her boyfriend’s

presented at trial undermined Williams’s prejudice claim, such as surveillance video,
items found in Neal’s vehicle, Neal’s near proximity to the crime scene only a short time
after the 911 call, evidence found near where the foot chase began, and recordings of
Neal’s telephone calls from the jail. Application for further review was denied by the
supreme court.
        Indeed, the factual similarities between these matters are numerous—particularly
the evidence independent of the show-up identification demonstrating the strength of the
State’s case. Accordingly, we resolve Archer’s claim as we resolved Williams’s and
Neal’s claims.
                                          8


apartment. At the second location, E.W. immediately identified Archer as the one

who attacked her—and she was one-hundred percent sure. Archer’s body type

fit the description E.W. gave of her attacker. The clothing worn by Archer at the

time of his arrest fit the description of the clothing E.W. observed to be worn by

her attacker. But even if the identification evidence had been suppressed, there

is no reasonable probability of a different verdict.

       Coincidentally, Iowa City Police Officer LaKose encountered Archer very

near the scene of the assault around the time it occurred. On December 7, 2014,

at 4:34 a.m., Officer LaKose responded to the report of a burglary at an

apartment. The residents of the apartment told the officer someone had tried to

enter the apartment through a sliding glass door. The sliding glass door is along

a walkway that leads to the adjacent apartment complex where E.W. had been

attacked. It appeared to the officer that the sliding glass door had been pulled off

its tracks from the outside. Sometime between 4:30 and 4:50 a.m., as he was

attempting to secure the door, Officer LaKose was surprised to observe an

individual walking out of a door into the courtyard between the apartment

complexes. The individual saw the officer. At trial Officer LaKose testified:

               Q. And what did you note about the individual? A. We both
       kind of paused and looked at each other, and since the door was
       again kind of partially in and out, you could—you could feel the cold
       air coming from the outside. I spoke to him, and I said, “Are you all
       right?” or something similar to that. After a brief moment, he said,
       “Yes, I’m all right, and put his hands up.”
               Q. Why did you ask him that? A. A little bit—I didn’t know
       what to say because it was the whole shock factor that he came
       through that door, and that he was kind of walking through and
       paused and stopped after seeing a police officer through a sliding
       glass door. So I wondered if he was all right.
               Q. Did you assess what he was wearing? A. I did get a look
       at what he was wearing, yes. He had on—it looked like—it’s kind of
                                          9


        hard to describe—a hat as I call it, got the ear flaps over with rabbit
        fur or something on the inside; a dark colored coat, which I would
        describe as being Carhartt-styled coat; dark pants; and there was a
        shirt underneath it that was bright yellow or white, bright color.
               Q. Could you tell anything about his individual
        characteristics? A. My initial appearance of him, because he was
        wearing a little bit baggy clothing at the time or multiple layers with
        the coat and the shirts underneath it, the only thing I could see was
        that appearance as well as it being an African male—African-
        American male, a little bit bigger.

After this encounter, the individual walked very quickly away.         Two or three

minutes later, Officer LaKose received a radio dispatch concerning an armed

robbery that occurred in an apartment just across the courtyard. Officer LaKose

testified,

        Once I heard that radio traffic, knowing that we’re talking about 4:50
        in the morning, there’s not a lot of foot traffic. And working nights,
        you’ll see somebody every once in a while, but it’s kind of
        uncommon, so having somebody come out of that courtyard in
        such close proximity to the time that that call came out, to me, I felt
        that this was the individual that was involved.

He left the apartment to see if he could catch up with the individual but did not

see anyone.     The officer communicated this information to dispatch.            When

Officer LaKose heard the description of E.W.’s assailant from another officer, he

knew that was the individual that he had seen in the courtyard. Officer LaKose

then drove to the location where Archer was being detained. As he pulled up, he

“instantly knew that [Archer] was the individual that [he] saw walking out of that

courtyard.” He briefly spoke to Archer:

        My initial conversation with him was asking where he was coming
        from, where he indicated he was coming from the bars in the
        downtown area.       Getting more specific, I asked him if he
        remembered speaking with me. I think he was kind of passive with
        that and indicated that he didn’t. Spoke with him a little bit more
        and said, “Do you not remember seeing me as you came out of that
        courtyard and saw me inside that apartment? And I asked you a
                                          10


        question whether you were okay.” Me asking that question,
        whether you were okay, he actually changed it to how I actually
        asked that question, and I think I asked, “Are you all right” or
        something similar, which he corrected me. And then he said that,
        yes, I did ask him something and he had put his hands up, which is
        exactly what I saw.

Officer LaKose then returned to the courtyard area because,

        [k]nowing that [an officer] patted him down for weapons upon
        making contact with him to make sure that he and the officers
        arriving are safe, didn’t locate a knife, I thought that was a little
        suspicious, so I decided to backtrack where I saw him up to the
        apartment area. So I walked into the courtyard to take a look
        around to see if there was anything, because one of the things that
        I noticed was—and I thought maybe I was seeing something—
        when I looked out to see him through a glass door, I thought he
        was wearing a mask or something transparent over his face, and
        that wasn’t located on him either, so I wanted to go through that
        courtyard to see if there was a knife or some sort of a mask or
        anything left behind by this individual.

He found a steak knife hidden under a ladder in the courtyard. The knife was

later found to have E.W.’s DNA on it. Officer LaKose identified Archer in the

courtroom as the man he saw the morning of E.W.s assault.

        All of this evidence undermines Archer’s prejudice argument. Therefore,

his claim of ineffective assistance on the identification issue fails.

        B. Identification expert witness or instruction.

        Archer contends his trial counsel was ineffective in failing to call an expert

witness or request an instruction regarding eyewitness testimony.          Again, we

need not address the issue of trial counsel’s failure to perform an essential duty

because Archer has not shown he was prejudiced by the alleged breach.

        Regarding the issue of eyewitness testimony, our supreme court recently

said:
                                             11


         The reliability of eyewitness testimony has been the subject of
         intense commentary in academia and in the courts. According to
         one article, “eyewitness misidentification is by far the most frequent
         cause of erroneous convictions.” Samuel R. Gross, Loss of
         Innocence: Eyewitness Identification and Proof of Guilt, 16 J. Legal
         Stud. 395, 396 (1987). Yet, juries often attach great weight to
         eyewitness identification without consideration of reliability. See
         State v. Hunt, 69 P.3d 571, 576-77 (Kan. 2003) (noting that juries
         “usually attach great weight to eyewitness identification, while
         others involved in a trial know and other disciplines have
         documented that such identification is often unreliable”).
                 Preparing for eyewitness identification is an essential
         responsibility of defense counsel. Eyewitness testimony may have
         a dramatic influence on overall defense strategy or theory of the
         case.     Defense counsel must consider a pretrial motion to
         suppress. Voir dire may be used to educate the jury about honestly
         mistaken witnesses. Defense counsel must be prepared to explore
         the potential for error in the identification process through effective
         cross-examination. Cross-examination, however, is not likely to be
         effective when a person is genuinely mistaken about past events.
         Consideration should be given to obtaining expert witness
         testimony of the problems with eyewitness identification. See State
         v. Schutz, 579 N.W.2d 317, 319 (Iowa 1998) (holding admission of
         expert witness on eyewitness identification within sound discretion
         of the court); see also People v. McDonald, 690 P.2d 709, 725-26
         (Cal. 1984) (en banc) (holding exclusion of expert on reliability of
         eyewitness testimony was an abuse of discretion), overruled on
         other grounds by People v. Mendoza, 4 P.3d 265, 286 (Cal. 2000).
         Special instructions for the jury may need to be considered.
         Summations must be designed to deal with the eyewitness
         identification.

State v. Shorter, ___ N.W.2d ___, ___, 2017 WL 1367014, at *14 (Iowa 2017).

         Subject to the discretion of the district court, expert testimony on

eyewitness identification may be presented in a criminal trial. See Schutz, 579

N.W.2d at 320.           Additionally, Iowa has a uniform instruction addressing

eyewitness identification.3      Although proffer of eyewitness-identification expert


3
    Iowa Criminal Jury Instruction 200.45 provides:
                 The reliability of eyewitness identification has been raised as an
         issue. Identification testimony is an expression of belief or impression by
         the witness. Its value depends on the opportunity the witness had to see
                                            12


testimony and a request for the eyewitness-identification instruction would have

been appropriate in this case, Archer has not proven he was prejudiced by his

trial counsel’s failure to either offer expert testimony or request the instruction.

       Officer LaKose, a trained police officer, saw Archer near the time and

place of E.W.’s assault. Archer’s body-type and the clothing he was wearing at

the time of his arrest matched the observations made by three persons—E.W.,

her boyfriend, and Officer LaKose. Less than forty-five minutes after E.W. was

assaulted, Archer was found some six blocks from the crime scene. He claimed

he was coming from work. The detaining officer asked Archer about the odor of

alcohol on his breath, and Archer said he actually worked earlier and was coming

from a downtown Iowa City bar. The officer pointed out that the bars had been

closed for at least three hours and asked Archer what he had been doing in the

meantime. Archer did not give an answer to the officer. When Officer LaKose

spoke to Archer while he was detained, Archer acknowledged he was the

individual Officer LaKose observed earlier in the apartment courtyard. Because

       the person at the time of the crime and to make a reliable identification
       later.
                In evaluating the identification testimony of a witness, you should
       consider the following:
                1. If the witness had an adequate opportunity to see the person at
       the time of the crime. You may consider such matters as the length of
       time the witness had to observe the person, the conditions at that time in
       terms of visibility and distance, and whether the witness had known or
       seen the person in the past.
                2. If an identification was made after the crime, you shall consider
       whether it was the result of the witness’s own recollection. You may
       consider the way in which the defendant was presented to the witness for
       identification, and the length of time that passed between the crime and
       the witness’s next opportunity to see the defendant.
                3. An identification made by picking the defendant out of a group
       of similar individuals is generally more reliable than one which results
       from the presentation of the defendant alone to the witness.
                4. Any occasion in which the witness failed to identify the
       defendant or made an inconsistent identification.
                                       13


a knife was not found on Archer when he was patted down, Officer LaKose

decided to backtrack to the apartment complex courtyard to see if a mask or

knife was left behind. He found a steak knife under a ladder. The location of the

knife was in the path Archer took from the courtyard. E.W.’s DNA was found on

the knife.   Additionally, the centerpiece of Archer’s trial counsel’s closing

argument to the jury focused on the deficiencies of the eyewitness testimony.

      Even had Archer’s trial counsel challenged the eyewitness identifications

by calling an expert witness, by requesting the stock eyewitness-identification

instruction, or by doing both, there is no reasonable possibility of a different

outcome at trial. Archer has not proven the prejudice prong of his ineffective-

assistance-of-counsel claim.     His claim of ineffective assistance on the

eyewitness-testimony issue therefore fails.

      C. Insufficient evidence of a “sex act.”

      Archer also contends the evidence was insufficient to support his third-

degree-sexual-abuse conviction because E.W.’s testimony that she felt contact

with her “genital area” and “butt” is not specific enough to establish that a “sex

act” occurred.

      The State contends Archer failed to preserve error by not raising this claim

in his motion for judgment of acquittal. See State v. Truesdell, 679 N.W.2d 611,

615 (Iowa 2004) (“To preserve error on a claim of insufficient evidence for

appellate review in a criminal case, the defendant must make a motion for

judgment of acquittal at trial that identifies the specific grounds raised on

appeal.”). Archer did move for a judgment of acquittal at the close of the State’s
                                           14


case but failed to specifically raise this claim.4 Therefore, it was not preserved

for our review.    Anticipating this impediment, Archer asks us to consider his

sufficiency claim under the ineffective-assistance-of-counsel rubric. See State v.

Fountain, 786 N.W.2d 260, 263 (Iowa 2010) (“Ineffective-assistance-of-counsel

claims are an exception to the traditional error-preservation rules.”). Thus we will

consider Archer’s challenge to the sufficiency of the evidence within the context

of an ineffective-assistance-of-counsel claim.            We can resolve Archer’s

ineffective-assistance-of-counsel claim under the prejudice prong.

       As relevant here, a “sex act” is defined as “contact between the genitalia

of one person and the genitalia or anus of another person.”                  Iowa Code

§ 702.17(2). E.W. testified that Archer tackled her, took her to the ground, and

then pinned her against the couch. Her knees were on the floor and her torso

and face were on the seat of the couch. Archer was crouched over her with his

knees on the ground and “had his whole body on [her] body.” She felt his erect

penis on her “backside.” Archer rocked back and forth in a “grinding motion” on

E.W.’s “butt and genital area.” Even though she had jeans and a blouse on, she

could feel his erect penis on her butt and genital area, and she noted he was

breathing heavily as if he was sexually aroused. On redirect examination, E.W.

stated there was no doubt in her mind that Archer was touching her genital area.

4
  In moving for a judgment of acquittal at the close of the State’s evidence, Archer
acknowledged the law does not require skin-to-skin contact but argued the evidence was
insufficient because he was wearing at least three different layers of clothing when he
was arrested, which “would be sufficient objectively to prevent the perception of touch to
the areas that are required to satisfy the sex act criteria.” See State v. Pearson, 514
N.W.2d 452, 455 (Iowa 1994) (holding “skin-to-skin contact is not required in order to
establish a ‘sex act’ under section 712.17” and determining “prohibited contact occurs
when (1) the specified body parts or substitutes touch and (2) any intervening material
would not prevent the participants, viewed objectively, from perceiving that they have
touched”).
                                        15


Archer contends this testimony is not sufficiently specific enough to conclude that

“‘contact between the genitalia of one person and the genitalia or anus of another

person’ had occurred.” We disagree.

       In evaluating the sufficiency of the evidence, we view it in the light most

favorable to the State and make every legitimate inference and presumption that

may fairly and reasonably be deduced from the record in the State’s favor. See

State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002). “[W]e are mindful that our cases

demonstrate a ‘long-standing preference for submitting criminal cases to a jury if

there is any substantial evidence tending to support the charge.’”        State v.

Martens, 569 N.W.2d 482, 487 (Iowa 1997) (citation omitted).            When the

testimony is viewed in context—and drawing all reasonable inferences from the

testimony in favor of the State—it is clear that E.W. was describing acts that

support Archer’s sexual-abuse conviction.      Archer is thus unable to show a

reasonable likelihood the outcome of the trial would have differed if his trial

counsel had made a motion for acquittal on the basis E.W.’s testimony did not

establish that a ”sex act” occurred. Accordingly, Archer’s ineffective-assistance-

of-counsel claim on this issue fails.

       IV. Conclusion.

       Archer has not proven the prejudice prong of his ineffective-assistance-of-

counsel claims. Accordingly, we affirm Archer’s convictions and sentences.

       AFFIRMED.
