                    IN THE COURT OF APPEALS OF IOWA

                                      No. 15-0309
                                  Filed April 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSEPH ROBERT JOYCE JR.,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       Defendant appeals his convictions for first-degree burglary and domestic

abuse assault by strangulation causing bodily injury. AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



       Considered by Vaitheswaran, P.J., Doyle, J., and Goodhue, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODUE, Senior Judge.

      Joseph Robert Joyce Jr. was convicted by jury trial of burglary in the first

degree and domestic abuse assault by strangulation causing bodily injury.

   I. Factual Background

      On March 4, 2013, an altercation between Joyce and Kiya Ferguson took

place in the residence Ferguson was occupying. Both testified they had been

residing together and believed that Ferguson was pregnant with Joyce’s child.

They had separated in December as the result of a no-contact order. When

Joyce arrived at Ferguson’s apartment is a matter of dispute. Ferguson testified

that she had arrived at the apartment a little after noon on the date of the

incident, and Joyce had knocked at the door soon thereafter and basically forced

his way in. Joyce testified he had stayed the night before and had remained

there until Ferguson came home the next afternoon.

      As soon as they were both present at the apartment, an argument took

place. She accused him of cheating on her, and he accused her of drinking too

much while pregnant with his child. She testified she was thrown to the floor and

choked to the point of unconsciousness on two different occasions during the

altercation. At one point, she attempted to leave to get help, but he pursued her

and dragged her back into the apartment. At another point, he grabbed her and

was attempting to force her into her bedroom, and she tripped. She put her hand

out to protect herself and went through the window, causing a laceration on the

palm of her hand. She attempted to call 911, but Joyce took the cell phone away

and threw it where Ferguson was unable to reach it.         Joyce finally left the

apartment, and Ferguson retrieved her cell phone, called the police, and followed
                                         3


him so she could tell officers where he had gone. At trial, Ferguson gave a

detailed account of the physical altercation.

       Jennifer Brown, who lived in the same apartment building as Ferguson,

heard noises in Ferguson’s apartment that sounded like wrestling, things being

thrown around, and yelling and screaming. She could hear a man’s voice and a

woman’s voice pleading “stop.”       She had called 911 prior to the call that

Ferguson was able to complete.

       Joyce testified that he had been invited to the apartment the day before

and spent the afternoon with Ferguson. Ferguson left in the evening with two of

her girlfriends to drink and play cards. She did not come back until 1:00 p.m. the

following day, when an argument developed. He decided to leave the residence,

but Ferguson charged him and took a swing at him. He ducked, and she struck

the window, breaking it and cutting her hand. Joyce took her to the bedroom to

cleanse and dress the wound. She was crying at the time and yelled at him to

stop. Joyce asserts that it was those cries and pleadings Brown heard.

       The police and paramedics arrived. Ferguson was taken to the hospital

and examined by a doctor. The doctor observed contusions on multiple sites, an

injury to the back of her head, and a hand abrasion, and opined that she was a

victim of physical assault. Ferguson was confused and disoriented. She had a

blood alcohol level of .087 when tested three and one-half hours after the

incident, but the examining physician determined that the disorientation was a

result of her head injury and the resulting concussion.

       A trial information was filed charging Joyce with domestic abuse assault

by strangulation causing bodily injury and first-degree burglary with intentional or
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reckless infliction of bodily injury. Joyce was convicted of both charges. Joyce’s

counsel moved for a judgment of acquittal at the close of the State’s evidence

and made a motion for new trial, but both motions were overruled.

       Joyce’s appeal is entirely based on a claim of ineffective assistance of

counsel. The claim is predicated on counsel’s failure in the following respects:

(a) failing to raise the lack of the “family or household members residing together”

element as required to support a domestic-abuse-assault charge in either the

motion for judgment of acquittal or motion for new trial, (b) failing to request an

additional instruction defining “family or household member,” (c) failing to object

to the marshalling instruction on the burglary charge that did not contain a

justification   or   self-defense   element,   (d)   recklessly   eliciting   testimony

characterizing Joyce as a drug dealer, and (e) failing to object to the prosecutor’s

comments in his rebuttal argument on Joyce’s silence after submitting to the

authorities.

       Joyce also requested all the claims be added together and accumulated

when determining whether or not the prejudice prong of his claim of ineffective

assistance of counsel had been met.

   II. Preservation of Error

       Joyce’s appeal is based on an ineffective-assistance-of-counsel claim.

Ineffective assistance of counsel is an exception to the general preservation-of-

error requirement. State v. Fountain, 786 N.W.2d 260, 263 (Iowa 2010).
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   III. Scope of Review

         Claims of ineffective assistance of counsel raise constitutional issues and

as such, the review is de novo. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa

2012).

   IV. Discussion

         To prevail on a claim of ineffective assistance of counsel the claimant

must prove by a preponderance of the evidence that (1) counsel failed to perform

an essential duty and (2) prejudice resulted. Ledezma v. State, 626 N.W.2d 134,

142 (Iowa 2001).        A claim of ineffective assistance must overcome the

presumption that counsel is competent. Taylor v. State, 352 N.W.2d 683, 685

(Iowa 1984). An accused is not entitled to perfect representation but only that

level of representation that is within the normal range of competency. State v.

Artzer, 609 N.W.2d 526, 531 (Iowa 2000).         Choices of strategy after proper

investigation are virtually unchallengeable. Ledezma, 626 N.W.2d at 143. For

relief to be granted, there must be a determination that, but for ineffective

assistance, there is a reasonable probability the result would have been different.

Id. at 145.

         Counsel is not ineffective for failing to make a meritless claim. State v.

Brubaker, 805 N.W.2d 164, 171 (Iowa 2011). Ordinarily, claims of ineffective

assistance of counsel are preserved for a postconviction-relief proceeding, but

we will resolve them on direct appeal when the record is adequate. State v.

Clay, 824 N.W.2d 488, 494 (Iowa 2012). Claims of ineffective assistance do not

accumulate when there is a breach of duty, but when there is more than one
                                        6

breach of duty, they may be considered cumulative to determine prejudice. Id. at

501-02.

   A. Judgment of Acquittal

      Counsel did not raise the State’s alleged failure to establish the “family or

household members residing together within the last year” element of domestic

abuse assault in the motion for acquittal. The State’s burden is met if a rational

finder of fact based on the evidence in the record could find that the elements of

the crime have been established beyond a reasonable doubt.                State v.

Keopasaeuth, 645 N.W.2d 637, 640 (Iowa 2002).

      Ferguson had testified she and Joyce had resided together within the year

prior to the incident and, specifically, had resided together until the previous

December. Ferguson was the tenant on the lease but Joyce also received mail

at that address, shared household tasks, kept some of his belongings there, and

had an intimate and sexual relationship with Ferguson. Joyce did not have keys

to the apartment but borrowed Ferguson’s keys frequently. A stay-away order

had been entered between the parties within the previous three months. Merely

living in the same apartment does not meet the criteria of the statute. State v.

Kellogg, 542 N.W.2d 514, 518 (Iowa 1996).           The testimony of Ferguson

established a relationship appreciably more extensive than mere roommates. To

have contended otherwise in the motion for judgment of acquittal would have

been meritless.

      B.     Motion for New Trial and Omitted Instruction

      In ruling on a motion for new trial, the court is required to consider the

weight of the evidence, which is a much broader standard than a sufficiency-of-
                                          7

the-evidence standard, and it involves questions of credibility. State v. Maxwell,

743 N.W.2d 185, 193 (Iowa 2008). It is only in extraordinary cases, where the

evidence preponderates against the verdict, that a jury verdict should be

disturbed by the courts. Id.

       Even without it being raised, the court would have been cognizant of the

relationship requirement.      Joyce’s testimony bolstered and strengthened the

relationship between the parties as testified to by Ferguson.             He thought

Ferguson was pregnant with his child and referred to the parties as “Mother

Baby” and “Father Baby.”         Joyce never denied that he had a significant

relationship with Ferguson.      Joyce admitted he and Ferguson had lived and

resided together. Joyce testified that at the time of the incident they had what he

termed an “open relationship” but would not say it was an “open relationship”

when they were living together. “If she was doing something that wasn’t up close

I wouldn’t know nothing about it.” If counsel had raised the relationship issue in

the motion for new trial, it would have been denied.

       Joyce claims in any event, the instructions should have included an

instruction defining “family or household member,” but counsel made no such

request and, therefore, failed in his duty to do so. When there is no factual

contention as to a particular legal issue, it is not ineffective assistance for counsel

to fail to request an instruction be included. State v. Blackford, 335 N.W.2d 173,

178 (Iowa 1983).      Blackford has been followed in State v. Broughton, 450

N.W.2d 874, 876 (Iowa 1990).
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       C.     Failure to Object to the Absence of Justification in the Burglary

Marshalling Instruction

       Joyce also claims the marshalling instruction on burglary should have

included an element requiring the State to prove he acted without justification.

Self-defense was the essence of his defense. Self-defense is a justification for

an assault. The element required to establish guilt under the alternative form of

burglary used in this case is not an assault but rather “an intent to commit an

assault.” To the extent an assault needed to be set out, the definition of assault

and justification by self-defense were clearly set out in the instructions. Counsel

has no duty to request justification as a part of the marshalling instruction of

burglary in the alternative under which Joyce was charged.

       D.     Testimony Indicating Joyce was a Drug Dealer

       During cross-examination, defense counsel asked Ferguson about

assistance that Joyce may have received in getting his car unstuck from the

snow a day or two before the incident in question. Ferguson had replied it was

not Joyce but a girl with him that helped. Counsel asked if she knew who the girl

was, and Ferguson replied “[J]ust a lady he served to.” Counsel asked, “[W]hat

does that mean?” And Ferguson replied, “[L]ike he sells drugs so that’s just a

lady that he served to.”

       “The admission of evidence of cocaine delivery and distribution is

inherently prejudicial.”   State v. Liggins, 524 N.W.2d 181, 188 (Iowa 1994).

Joyce contends defense counsel should have known what the answer would be.

The State primarily argues counsel had no reason to anticipate the answer given

and, more importantly, that the statement without further enhancement is not
                                            9


prejudicial.      The record is not adequate to determine what counsel knew or

should have known about the likely response to the question asked. If under the

facts counsel violated a duty, the prejudicial impact and any cumulative effect it

might have should be left to be evaluated in a postconviction hearing.

          E.      After the Warrant for Joyce’s Arrest was Issued He Turned Himself

In

          On cross-examination the following exchange took place between the

prosecution and Joyce:

                 Q. You were asked if the police department ever tried to get
          your side of the story. A. Yes, sir.
                 Q. And you were saying they did not? A. No they did not. At
          the point when I turned myself in there wasn’t no way for me to
          offer.
                 Q. You couldn’t have just said, hey, let me tell you what
          happened? A. No.

          In his rebuttal argument the prosecutor stated the following: “Don’t forget

the defendant has had seventeen months to think about his story. He’s never

provided an explanation to law enforcement before. Never made a statement

before.” Defense counsel lodged no objection.

          Comments by a prosecutor on a defendant’s silence after receiving a

Miranda warning violate the Due Process Clause of the Fourteenth Amendment.

Doyle v. Ohio, 426 U.S. 610, 619 (1976). Such comments are not a violation of

due process if voluntary statements are made prior to a Miranda warning.

Fletcher v. Weir, 455 U.S. 603, 605-06 (1982).          Further, in Doyle the court

specifically noted the State did not contend that the comment was “harmless

error.”        Doyle, 426 U.S. at 619-20.       The concept of “harmless error” is

substantially equivalent with the prejudice prong in an ineffective-assistance-of-
                                       10


counsel claim. The record does not indicate whether or when Joyce was given a

Miranda warning and whether any time existed for him to tell his story before the

Miranda warning was given.

      This issue, as well as the issue regarding the testimony indicating Joyce

was a drug dealer, are left to be considered in a postconviction relief action. We

affirm Joyce’s convictions.

      AFFIRMED.
