                    IN THE COURT OF APPEALS OF IOWA

                             No. 3-1219 / 13-0582
                             Filed February 5, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LUIS RAMON CRUZ AYABARRENO,
      Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Hancock County, DeDra L.

Schroeder, Judge.



      A defendant appeals his first-degree robbery conviction. AFFIRMED.



      Mark C. Smith, State Appellate Defender, Maria Ruhtenberg, Assistant

State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Sharon Hall and Robert Sand,

Assistant Attorneys General, and David Solheim, County Attorney, for appellee.



      Considered by Doyle, P.J., and Tabor and Bower, JJ.
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TABOR, J.

       A Hancock County jury convicted Luis Ayabarreno of first-degree robbery

after hearing his recorded confession to holding up a convenience store and

stashing the proceeds at a relative’s house. On appeal, Ayabarreno challenges

the sufficiency of the store clerk’s identification, a remark made by the prosecutor

during closing argument, and his trial attorney’s failure to object to the

prosecutor’s questions to the clerk concerning her reaction to the robbery.

       Because evidence other than the clerk’s description was sufficient to

prove Ayabarreno’s guilt beyond a reasonable doubt, we do not disturb the jury’s

verdict. Given the isolated nature of the prosecutor’s comment during closing

arguments, we find no abuse of discretion in the district court’s denial of a motion

for mistrial. Finally, based on the strong case against Ayabarreno, including his

own confession, we find no reasonable probability the outcome of the trial would

have been different had counsel objected to direct examination of the store clerk.

I.     Background Facts and Proceedings

       By the end of her shift on November 25, 2011, store clerk Mendi Cuellar

was exhausted. Before coming into work that afternoon at the Town Mart in

Klemme, she had been out shopping at after-Thanksgiving, Black Friday sales.

And because it was a holiday weekend, the convenience store saw a steady

stream of customers that day. So when Cuellar noticed an individual that night

walking up and down the street, watching the store, she did not think much of it.

       As she was closing, she took the cash and checks out of the till and

placed them in bank bags for deposit the next day. Just then, a masked man
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came into the store and pulled a knife on her. He demanded: “Where’s the

money? Give me the money. Is that all the money?” Cuellar gave him three

money bags. The man left and Cuellar locked the door and called 911.

       Cuellar told the 911 operator the robber had covered most of his face with

his hood and a bandana, but from what she could see, she believed his skin was

“darker colored.” Cuellar also told the operator she had “no idea” how old the

robber was. Cuellar later informed investigators she believed he may have been

a younger man based on his clothing and “the way he handled himself.” Cuellar

said the robber wore a hooded sweatshirt with “Carolina” written on it, flip-flops

with socks, grey sweatpants, and a maroon or red bandana. While the robber

only spoke a few sentences, Cuellar recalled he was soft-spoken, and she told

investigators she did not detect an accent. The clerk also recalled the robber’s

hands looking orange, like a “someone with a bad spray tan.”

       While investigating the robbery, Hancock County Sherriff’s Deputy Cory

Leerar reviewed the store’s surveillance video from that night and previous days.

After reviewing the video, the deputy was able to identify a man entering the

store, on an earlier occasion, wearing the Carolina sweatshirt described by

Cuellar.   The deputy was able to link the man wearing that sweatshirt to a red

Chrysler Concorde with Minnesota plates. The Concorde was registered to Luis

Ayabarreno. The deputy remembered seeing the vehicle parked in front of a

home in Klemme. Further investigation uncovered that Maria Garcia, the sister

of Ayabarreno’s girlfriend, lived at the house. Ayabarreno and his girlfriend were

in town at the time of the robbery visiting Garcia.
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       Based on this information, the police obtained a search warrant for the

house and executed it on January 19, 2012.          While the warrant was being

executed, Iowa Division of Criminal Investigation Agent Chris Callaway was in

Minnesota questioning Ayabarreno. Ayabarreno admitted robbing the Town Mart

and described for the agent the exact location where the money bags were

hidden in a chimney at his girlfriend’s sister house in Klemme. Callaway relayed

that information to the officers back in Iowa, and they found the money bags

exactly where Ayabarreno said they were hidden. The police also found the

“Carolina” sweatshirt, dark-colored flip-flops, and kitchen knives.

       On January 31, 2012, the State charged Ayabarreno with robbery in the

first degree, in violation of Iowa Code sections 711.1 and 711.2 (2011). A jury

trial commenced on February 27, 2013, and the jury found Ayabarreno guilty as

charged on February 28, 2013. On March 18, 2013, Ayabarreno filed a motion

for a new trial and in arrest of judgment. After a hearing, the court denied the

motion. The court sentenced Ayabarreno to an indeterminate twenty-five-year

term in prison. He now appeals.

II.    Standard of Review

       We review sufficiency of the evidence claims for correction of errors at

law. State v. Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). We review claims of

prosecutorial misconduct for an abuse of the district court’s discretion. State v.

Greene, 592 N.W.2d 24, 30–31 (Iowa 1999). An appellate court will find abuse

only if the district court “acts on grounds clearly untenable or to an extent clearly

unreasonable.” State v. Krogmann, 804 N.W.2d 518, 523 (Iowa 2011).
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       Generally, we review an evidentiary ruling for an abuse of discretion.

State v. Belken, 633 N.W.2d 786, 793 (Iowa 2001). But when the claim involves

constitutional rights, such as ineffective assistance of counsel, we review de

novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).

III.   Analysis

       A.     Did   the    State   offer       substantial   evidence   to   support

Ayabarreno’s conviction?

       Ayabarreno argues the victim’s description of the robber was not sufficient

to support his identification as the perpetrator and eventual conviction.

       In reviewing challenges to the sufficiency of evidence supporting a guilty

verdict, we examine the evidence in the record in the light most favorable to the

State, including any fair inferences, which would support the verdict. State v.

Lamb, 573 N.W.2d 267, 268 (Iowa 1998). If substantial evidence supports the

verdict, we will affirm.   State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005).

Substantial evidence is the kind of proof that would convince a rational jury the

defendant is guilty beyond a reasonable doubt.          See State v. McCullah, 787

N.W.2d 90, 93 (Iowa 2010). It is not enough for evidence to raise “suspicion,

speculation, or conjecture” as to the defendant’s guilt. Id.

       We find the evidence sufficient to support the jury’s verdict. To establish

Ayabarreno’s guilt on the first-degree robbery charge the State was required to

prove he (or someone he aided and abetted) had the specific intent to commit a

theft, committed an assault on Mendi Cuellar or threatened her with or
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purposefully put her in fear of immediate serious injury, and he was armed with a

dangerous weapon. See Iowa Code §§ 711.1(1), 711.2.

       Ayabarreno claims Cuellar’s identification was insufficient to support the

verdict. He points out the store clerk described the robber as appearing to be

black, younger, and having no accent, while he is Hispanic, similar in age to

Cuellar, and speaks with an accent. Cuellar testified at trial she could not identify

Ayabarreno as the robber because the robber covered his face.

       We agree with Ayabarreno that Cuellar’s misperception of his ethnicity

and age do not assist in proving his guilt. But that does not end our analysis.

We find ample evidence, apart from her description, to support the conviction.

       After the report of the robbery, Deputy Leerar took the time to review

surveillance tapes from the store. He was able to verify the robber was wearing

a grey “Carolina” sweatshirt and saw that sweatshirt worn into the store on earlier

occasions by an individual driving a red Chrysler Concorde with Minnesota

plates, registered to Ayabarreno. The deputy had noticed that car parked at a

home in Klemme over the Thanksgiving holiday. With this information, the officer

obtained a warrant to search that home where Ayabarreno’s girlfriend’s sister

lived. Inside the home, the officers found the “Carolina” sweatshirt in a suitcase.

       DCI Agent Callaway confronted Ayabarreno with news that officers found

the sweatshirt. Ayabarreno eventually told the agent where the officers could

find the money bags hidden in his girlfriend’s sister’s chimney. Ayabarreno also

admitted to Agent Callaway that he was walking outside the store for about one-

half hour before going inside to commit the robbery.
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       Because of the solid police work after the robbery, the clerk’s inability to

identify the robber was not fatal to the State’s case. Viewing the evidence in the

light most favorable to the verdict, we find sufficient evidence to support the

robbery conviction.

       B.     Did the prosecutor commit misconduct in closing argument?

       The prosecutor ended his closing argument with this sentiment:

       Combined with his confession, and the details that he knew about
       the crime, I trust that you’ll see fit to find the defendant guilty of
       robbery in the first degree, and to give Mendi Cuellar some peace
       of mind knowing that justice has been done. Thank you.

       Ayabarreno objected outside the presence of the jury and moved for a

mistrial based on the prosecutor’s request that the jury do justice for the robbery

victim. The defense characterized the statement as prosecutorial misconduct

and asked that it be stricken from the record. The prosecutor did not assert his

references to the victim’s “peace of mind” and doing “justice” were permissible

but also did not concede they were improper.         The prosecutor resisted the

defense request for a mistrial by saying the jury could be instructed to disregard

his final remark.

       The district court denied the mistrial motion but instructed the jurors that

they were “not to place [themselves] into the position of the alleged victim or the

defendant in this case.”

       On appeal, Ayabarreno contends the district court abused its discretion in

not granting the mistrial motion.       He argues the prosecutor violated the

prohibition against “golden rule” arguments in his closing statement by asking the

jury to “give Mendi Cuellar some peace of mind knowing that justice has been
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done.”     A “golden rule” argument is where counsel asks the jurors to put

themselves in the place of a party or victim. Courts frown upon this type of

appeal to the emotions or personal interests of the jurors. See State v. Musser,

721 N.W.2d 734, 754 (Iowa 2006); see also United States v. Palma, 473 F.3d

899, 902 (8th Cir. 2007). The prosecutor’s remark here was not a blatant attempt

to misdirect the jury. The prosecutor did not ask the jurors to place themselves in

the shoes of the robbery victim. See State v. Rice, 652 S.E.2d 409, 426 (S.C. Ct.

App. 2007) (finding prosecutor’s request that jury give the murder victim’s wife

“peace” and the victim “justice” did not rise to the level of a golden rule argument)

overruled on other grounds by State v. Byers, 710 S.E.2d 55 (S.C. 2011); see

also State v. Kinney, No. 03-1149, 2005 WL 291529 at *3 (Iowa Ct. App. Feb. 9,

2005) (finding nothing objectionable in closing argument asking court to “give

these women justice” and find the defendant responsible for the crimes).

         But even if the prosecutor’s statement impermissibly diverted the jury’s

attention from the evidence and tried to obtain a conviction based on sympathy

for the victim, we find the statement was isolated and remedied by the district

court’s curative instruction. See Belken, 633 N.W.2d at 796 n.1 (presuming jury

adhered to curative instructions).

         In determining whether prejudice resulted from prosecutorial misconduct,

we consider several factors within the context of the entire trial. State v. Graves,

668 N.W.2d 860, 869 (Iowa 2003).         These factors include the severity and

pervasiveness of the misconduct, the significance of the misconduct to the

central issues in the case, the strength of the State’s evidence, the use of
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cautionary instructions or other curative measures, and the extent to which the

defense invited the improper conduct. Id. In this case, the misconduct, if any,

was isolated and had little significance given the defendant’s admissions to the

robbery. Moreover, the district court was in a better position to determine if the

prosecutor’s remark required a mistrial or could be addressed with a cautionary

instruction. See State v. Brotherton, 384 N.W.2d 375, 381 (Iowa 1986). We find

no abuse of discretion in the denial of the mistrial.

       C.     Was trial counsel ineffective in failing to object to the store

clerk’s testimony about the after-effects of the robbery?

       To prevail on his claims of ineffective assistance of counsel, Ayabarreno

must show (1) counsel failed to perform an essential duty and (2) prejudice

resulted. See State v. Lane, 726 N.W.2d 371, 393 (Iowa 2007). Improvident trial

strategy, miscalculated tactics, or mistakes in judgment do not necessarily

amount to ineffective assistance of counsel. Osborn v. State, 573 N.W.2d 917,

922 (Iowa 1998). To prove prejudice, he must show a reasonable probability

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

have been different. See id.

       We evaluate the totality of the relevant circumstances in a de novo review.

Lane, 726 N.W.2d at 392. Generally, we do not resolve claims of ineffective

assistance of counsel on direct appeal. State v. Biddle, 652 N.W.2d 191, 203

(Iowa 2002).      We prefer to leave such claims for postconviction relief

proceedings. State v. Lopez, 633 N.W.2d 774, 784 (Iowa 2001). But when the
                                         10



record is adequate, as it is here, we will resolve them. State v. Coil, 264 N.W.2d

293, 296 (Iowa 1978).

       Ayabarreno faults his counsel for failing to object to the State’s

questioning of Cuellar about her continued fear after the robbery. He believes

the testimony was irrelevant and unfairly prejudicial.

       Near the end of Cuellar’s direct testimony, the State played the recording

of her 911 call. The prosecutor then asked the witness if her life had changed as

a result of the robbery. She replied, “most definitely,” and detailed several steps

she has taken to be more cautious, for instance, locking her house and carrying

a concealed weapon. She also testified she did not sleep well after the robbery

because she did not feel safe.      The exchange included eight questions and

answers. Defense counsel did not interpose any objections.

       We first note the State was required to prove, as an element of robbery,

that Ayabarreno threatened or purposely placed the victim in fear. See Iowa

Code § 711.1. Defense counsel could have reasonably determined no ground

existed to object because the victim’s reaction to the crime was relevant to the

fear element of the robbery offense.       See generally State v. Reynolds, 670

N.W.2d 405, 414 (Iowa 2003) (“Whether a particular victim was actually alarmed

by a defendant’s conduct is probative of whether such a reaction is a natural

consequence of that type of conduct. The fact the victim’s alarm is a typical

response to such conduct tends to establish that a person acting as the

defendant did should expect such a result.”).
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       Moreover, regardless of any duty to object, we do not find prejudice

resulted from the questioning. First, the prosecutor’s line of inquiry was fairly

limited.   Second, as we stated above, the State offered strong evidence of

Ayabarreno’s guilt—including his confession with knowledge of the precise

location of the robbery proceeds; a videotape of the robbery; and the recovery of

clothes that matched the description of those worn by the robber. We find no

reasonable probability the jury’s verdict would have been different had the store

clerk not testified concerning the after-effects of the crime.

       AFFIRMED.
