                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1647
                            Filed December 10, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JACOLBY PENDLETON,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Dubuque County, Margaret L.

Lingreen, Judge.



       A defendant challenges his conviction for robbery in the second degree.

AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

State Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney

General, Ralph Potter, County Attorney, and Christine Corken, Assistant County

Attorney, for appellee.



       Considered by Danilson, C.J., and Doyle and Tabor, JJ.
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TABOR, J.

       Timothy Waddell was “jumped” from behind by two men as he walked

home from the public library in downtown Dubuque. A jury convicted Jacolby

Pendleton of robbery in the second degree for his role in the attack on Waddell.

On appeal, Pendleton raises two claims of ineffective assistance of counsel.

First, Pendleton argues his attorney should have been more specific in moving

for judgment of acquittal. Second, Pendleton contends his attorney should have

objected to the instructions as failing to inform the jury that the assault element of

robbery required proof of specific intent. Because Pendleton cannot show either

of these alleged omissions by his attorney resulted in prejudice, we affirm.

I.     Background Facts and Proceedings

       In reaching its guilty verdict, the jury had access to the following evidence.

       Waddell left the library a few minutes before its 9 p.m. closing time on

February 28, 2013. Not having a car, Waddell started walking alone toward his

home. About three blocks from his destination, near the intersection of Locust

and Fourteenth Street, Waddell sensed he was being followed. He then felt a

sharp blow to the back of his head. Waddell recalled being “dazed” by the initial

blow. As he turned around to see what hit him, he was thrown to the ground,

where he was “pummeled a little bit.” A voice told him to “give up” his money and

he felt a hand reaching into the pockets of his yellow winter coat. When Waddell

told his attackers he had no money with him, “they scattered.”

       Waddell believed he was assaulted by two men, but could not provide “a

good description” of them “as quick as it happened.” He recalled one of the men
                                         3



standing over him wearing a parka, and described that suspect as African

American, “about 5-11 maybe, a skinny person.”

       After his two assailants ran off, Waddell walked home to assess his

injuries. He had a “goose egg” on the back of his head, a sore jaw, and cuts on

his face.   Waddell then walked to the police station, where he reported the

incident to Officer Neil Dolphin.

       Two days later, on March 2, Dubuque police officer Clark Egdorf was on

patrol at 3:30 in the morning when he saw a tan-colored 2004 Toyota Highlander

SUV parked alongside the road with its lights off and two people inside. The

officer spoke to the occupants, Jacolby Pendleton and Shelby Eisbach, both

nineteen years old.     The SUV was registered to Eisbach’s parents.      Officer

Egdorf did not take any action, but documented the encounter in the shift report

so other officers could review the information later if needed.

       On March 5, 2013, Officer Kurt Rosenthal reviewed the shift reports,

noting the unsolved robbery, as well as the early morning encounter with

Pendleton and Eisbach. Rosenthal went to the city engineer’s office to obtain the

traffic camera footage for the vicinity of the robbery on the evening of February

28. He also retrieved surveillance footage from security cameras used by a

funeral home in downtown Dubuque. When the officer reviewed the footage he

saw a Toyota Highlander pull into an alley near the time and location of the

robbery. He also saw two African American men emerge from the alley and

follow a man wearing a yellow coat, who appeared to be Waddell. The footage

did not show the robbery itself. But Officer Rosenthal did see an individual he
                                               4



believed to be Pendleton walk into the alley by himself and then sprint back to

the SUV with the other suspect.

          Officer Rosenthal also interviewed Eisbach, who acknowledged driving

around downtown Dubuque on February 28 with Pendleton, who was her

boyfriend, and his friend, Robert Snead—at one point dropping the two men off in

an alley and later picking them back up. Pendleton’s sister was also in the SUV.

          When interviewed by Officer Rosenthal, Pendleton admitted he and Snead

were the men captured on the footage sprinting down the alley. Pendleton told

the officer they parked in the alley because the two men stopped by the

residence of Snead’s aunt and did not want Eisbach to know where Snead’s aunt

lived. Pendleton testified at trial they went to the aunt’s house to get marijuana.

When the officer asked Pendleton if he had assaulted anyone, he responded

“[N]one of the victims would be able to identify him.”

          Eisbach testified that when they were driving around in her parents’ SUV

on February 28, Pendleton and Snead joked about “catching people’s wallets”

and “hitting a lick”—both phrases she understood to mean committing robberies.

She recalled Pendleton and Snead pointing out people on the street they saw as

“therms”—a term for weak people who would be easy to bully.                     When they

spotted an older man, they called him “an easy stang”—meaning a person from

whom they could easily steal.1

          According to Eisbach, after the SUV stopped in the alley, Pendleton and

Snead “got out and started running toward the street that the man was walking


1
    The trial record showed Waddell was in his mid-forties and received disability benefits.
                                         5



on.” The young women then drove around looking for them. They eventually

rendezvoused by the funeral home.        When they jumped back into the SUV,

Eisbach remembered Pendleton and Snead saying “the man ran off and that one

of them punched him in the head but he ran off too fast and so they came back to

the car.” Eisbach thought Pendleton looked disheveled when he returned to the

SUV, like he had been in a struggle.

         On March 26, 2013, the State charged Pendleton with second-degree

robbery, in violation of Iowa Code sections 711.1(1) and 711.3 (2013). The jury

trial started on June 24 and concluded with a guilty verdict on June 26, 2013.

The court sentenced Pendleton to an indeterminate ten-year prison term with a

mandatory minimum of seven years. Pendleton appeals his conviction.

         II.   Analysis of counsel’s performance

         We review Pendleton’s claims of ineffective assistance of counsel de novo

because they are grounded in the Sixth Amendment. See State v. Gines, 844

N.W.2d 437, 440 (Iowa 2014). The burden rests with Pendleton to show his

attorney performed below par and that subpar performance resulted in prejudice

to his defense.      See Strickland v. Washington, 466 U.S. 668, 687 (1984)

(establishing familiar two-part test).   Pendleton must show it was reasonably

probable the result of the prosecution would have differed but for counsel’s

errors. See id. at 694. A claim of ineffective assistance alleging the failure of

counsel to raise a claim of insufficient evidence to support a conviction normally

can be decided on direct appeal. State v. Truesdell, 679 N.W.2d 611, 616 (Iowa

2004).
                                           6



       Pendleton alleges his attorney committed two errors: failure to challenge

the State’s evidence he was the principal in the robbery and failure to request a

jury instruction specifying the assault element of robbery required proof of his

specific intent. We will address each allegation in turn.

       A. Motion for Judgment of Acquittal

       After the State’s case-in-chief, defense counsel moved for judgment of

acquittal, generally asserting the State did not prove Pendleton’s guilt beyond a

reasonable doubt.     Counsel mentioned the “videos put into evidence by the

State” and argued they could not lead a reasonable juror to conclude his client

was one of “the actual subjects” who committed the robbery.

       On appeal, Pendleton alleges counsel breached an essential duty by not

targeting the prosecutor’s proof he was the principal in the robbery, “the only

theory of prosecution pursued by the State.” Pendleton claims the evidence was

insufficient to prove his liability as the principal because he “was never singled

out as the one who actually threw the punches.” Pendleton contends that had

his attorney challenged the proof he was the robbery participant who assaulted

Waddell to carry out the intent to commit a theft or to assist in escaping from the

scene, the district court would have granted the motion for judgment of acquittal.

       It is true neither the trial information nor the jury instructions incorporated a

theory of aiding and abetting. On appeal, the State refers to the absence of the

aiding-and-abetting alternative as a “fixable oversight.”        The State argues if

defense counsel had based the motion for judgment of acquittal on alleged

insufficient evidence to show Pendleton was the principal, the prosecutor would
                                             7



have addressed aiding and abetting in resisting the motion for judgment of

acquittal and would have sought a jury instruction on that alternative theory of

criminal liability. The State emphasizes it is unnecessary—in fact surplusage—to

charge a defendant as both a principal and as an aider and abettor. See State v.

Satern, 516 N.W.2d 839, 843 (Iowa 1994); State v. Black, 282 N.W.2d 733, 734

(Iowa 1979) (interpreting Iowa Code section 703.12). In the alternative, the State

argues sufficient evidence supported the jury’s verdict finding Pendleton guilty as

the principal. We accept the State’s alternative argument.

         The State proceeded on the theory that Pendleton intended to commit a

theft and, in carrying out that intention, Pendleton assaulted Waddell. Viewing

the evidence in the light most favorable to the State, a reasonable jury could

have found substantial evidence to support that theory.                Eisbach recalled

Pendleton and his friend expressing their intent to commit a robbery—speaking

in slang terms. They picked out their target and left the SUV. Cameras captured

Pendleton and his friend pursuing the victim. Waddell said he was struck from

behind, pummeled while on the ground, and the assailants rifled through his

pockets. Waddell saw two men flee the scene and cameras captured them

sprinting back to the SUV. Where the evidence reveals multiple participants in a

robbery are acting in concert, our case law has held “the conduct of one



2
    Section 703.1 provides:
          All persons concerned in the commission of a public offense, whether
          they directly commit the act constituting the offense or aid and abet its
          commission, shall be charged, tried and punished as principals. The guilt
          of a person who aids and abets the commission of a crime must be
          determined upon the facts which show the part the person had in it, and
          does not depend upon the degree of another person’s guilt.
                                          8



accomplice is attributable to all.” State v. Johnson, 162 N.W.2d 453, 455 (Iowa

1968).

         When asked during the trial if Pendleton looked disheveled when he got

back into the SUV, Eisbach replied: “Yeah. They looked like they struggled a

little bit.” The jury could infer from that response that Pendleton, acting as the

principal, struggled with Waddell during the robbery.       In addition, Pendleton

initially lied to Officer Rosenthal about his whereabouts that night, but

acknowledged being in the vicinity of the robbery when confronted with the video

evidence. See State v. Odem, 322 N.W.2d 43, 47 (Iowa 1982) (explaining false

story may be indication of guilt). Pendleton also tellingly said “none of the victims

would be able to identify him”—betraying the fact he was aware the victim was

struck from behind.

         On this record, Pendleton cannot show a more specific motion for

judgment of acquittal, challenging the State’s theory that he acted as the principal

in the robbery, would have made a difference in the outcome of the trial.

Accordingly, he fails to satisfy the prejudice prong of his ineffective-assistance

claim. See State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003) (concluding even if

trial counsel could have made a more specific motion for judgment of acquittal, a

claim of ineffective assistance of counsel cannot be established if the State’s

evidence was sufficient to generate a jury question on defendant’s guilt).

         B. Specific Intent Instruction

         We next consider Pendleton’s claim that counsel was ineffective for not

challenging the jury instructions.     Pendleton argues he was prejudiced by
                                          9



counsel’s omission because “the jurors were never instructed that assault was a

specific intent crime.”

       The marshalling instruction for robbery used in this case required the

State to prove the following elements: (1) Pendleton “had the specific intent to

commit a theft,” and (2) in carrying out his intention or to assist him in escaping

from the scene, with or without stolen property, he committed an assault on

Timothy Waddell. See Iowa Code § 711.1. Concerning element number two, the

court instructed the jury: “[A]n Assault is committed when a person does an act

which is meant to cause pain or injury to another person, when coupled with the

apparent ability to do the act.”

       The court also provided the jury with an instruction defining specific intent:

             “Specific intent” means not only being aware of doing an act
       and doing it voluntarily, but in addition, doing it with a specific
       purpose in mind.
             Because determining the Defendant’s specific intent requires
       you to decide what he was thinking when an act was done, it is
       seldom capable of direct proof. Therefore, you should consider the
       facts and circumstances surrounding the act to determine the
       Defendant’s specific intent. You may, but are not required to,
       conclude a person intends the natural results of his acts.

The court did not provide the jury with an instruction defining general intent.

       Pendleton points out that proof of specific intent is required for both

elements of robbery, yet the specific intent instruction was not “linked in any way”

to the assault definition. He claims counsel was ineffective in not requesting

such a link.

       The State offers a two-fold response. First, the State contends counsel

had no duty to object to the instructions given because they adequately
                                            10



conveyed to the jury the proof of intent required for the assault element of

robbery. Second, the State argues Pendleton’s strategy did not depend on a

more precise specific intent instruction.

       Our supreme court has decided assault is a specific intent crime. See

State v. Fountain, 786 N.W.2d 260, 265 (Iowa 2010) (explaining its conclusion

that assault includes an element of specific intent is not inconsistent with the

legislature’s action in amending Iowa Code section 708.1 to define assault as a

general intent crime because the legislature did not change the elements of

assault). In Fountain, a domestic abuse assault prosecution, the district court

provided only a general intent instruction. Id. at 262. On appeal, the supreme

court decided the district court was required to instruct the jury on specific intent,

but preserved the question whether trial strategy could explain counsel’s failure

to ask for a specific intent instruction. Id. at 267.

       In Pendleton’s case, the district court did instruct the jurors on specific

intent, and only on specific intent. The absence of a general intent instruction

removed the possibility of jury confusion. The court also used plain language to

explain the intent required for assault: “[A] person does an act which is meant to

cause pain or injury to another person.”          Because the jury was accurately

informed of the mens rea element of assault, the lack of a cross reference to the

specific intent instruction was of little consequence. See State v. Keeton, 710

N.W.2d 531, 534 (Iowa 2006) (opining regardless of the specific label attached—

specific intent or general intent—the State must prove the elements of the crime

and their accompanying mens rea beyond a reasonable doubt).                 The jury
                                       11



understood the State was required to prove Pendleton’s act was meant to cause

Waddell pain or injury, which is consistent with doing that act with a specific

purpose in mind. Counsel did not breach an essential duty by not objecting to

the instructions as given.

       Even if counsel should have requested a cross reference between the

assault element and the specific intent definition, Pendleton cannot show his

case would have come out differently as a result. The defense did not dispute

the occurrence of an assault; in closing argument, counsel said: “We know Mr.

Waddell got assaulted. We know that.” The fighting issues were who assaulted

Waddell and was he actually robbed. Neither of those questions hinged on the

intent element of assault. Clearer instructions on assault as a specific intent

crime would not have aided Pendleton’s defense. See Fountain, 786 N.W.2d at

267 (contemplating defense strategy where individual elements of assault

become important).

       Because Pendleton is unable to establish his defense was prejudiced by

counsel’s performance, we decline to grant a new trial.

       AFFIRMED.
