                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1838
                             Filed February 11, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAMES E. WARREN JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Gary D. McKenrick,

Judge.



      James Warren appeals from the judgment and sentence entered following

his convictions for burglary in the second degree and theft in the third degree.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Dennis D. Hendrickson,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant

Attorney General, Michael J. Walton, County Attorney, and Kelly Cunningham,

Assistant County Attorney, for appellee.



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

          James Warren appeals from the judgment and sentence entered following

his convictions for burglary in the second degree and theft in the third degree,

claiming the evidence was insufficient to support the jury’s findings of guilt. We

affirm.

I.        Background Facts and Proceedings

          At around midnight on June 2, 2013, Bridgette Sorenson, Kayleigh

Paramentier, Brianna Rewerts, Ashley Gregan, and Sarah Schillig were relaxing

at Sorenson’s apartment after returning from a neighborhood festival. They were

sitting on the back porch listening to music when Sorenson heard the screen

door shut. Sorenson and Rewerts walked into the house to investigate. They

saw a male standing on the porch going through the purses that had been on the

kitchen table.

          Sorenson described the intruder as an African American male who was “a

little taller” than her (Sorenson is 5’11”) and who was wearing a gray button-down

shirt and dark pants. Rewerts also described the intruder as wearing a gray

button-down shirt.

          When he heard the women coming, the intruder “took off” running from the

house with the purses. The area by the kitchen was “pretty well-lit” because the

kitchen light was on. There was also a light right next to the back door, as well

as a light in the alley outside the back door. Sorenson was able to view the

intruder’s back and side for approximately fifteen to twenty seconds in these lit

areas. Rewerts stated she observed the intruder for “like ten, fifteen seconds”

before he ran away.
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      A Davenport police officer responded to Sorenson’s apartment on a report

of a burglary.   Approximately twenty minutes later, another officer found a

possible suspect walking down the street near the apartment, James Warren, a

5’9” African American male “wearing dark clothing,” whom he believed matched

the description provided by Sorenson and Rewerts. After a short chase, the

officers apprehended Warren and placed him in custody. Several purses were

discovered nearby.

      Sorenson and Rewerts accompanied an officer to the location police were

holding Warren approximately two blocks away. Sorenson and Rewerts both

identified Warren as the male intruder in Sorenson’s apartment that evening.

Neither had any doubt in their minds Warren was the same person. Rewerts

also identified one of the purses recovered near Warren as belonging to Gregan.

      Warren was charged with burglary in the second degree, in violation of

Iowa Code sections 713.1 and 713.5 (2013), and theft in the second degree, in

violation of sections 714.1(1) and 714.2(2). Warren pled not guilty, and the case

proceeded to trial.   At trial, the jury heard testimony from the women at the

apartment (Sorenson, Rewerts, Gregan, Schillig, and Paramentier), and the

Davenport police officers involved in responding to the apartment and locating

and apprehending Warren (Erik Johnson, Gregory Mahieu, and Robert Welch).

      The jury found Warren guilty of burglary in the second degree and theft in

the third degree. The district court sentenced Warren to terms of imprisonment

not to exceed ten years on the burglary count and not to exceed two years on the

theft count, to run concurrent. Warren appeals.
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II.    Standard of Review

       We review challenges to the sufficiency of the evidence for correction of

errors at law.     State v. Edouard, 854 N.W.2d 421, 431 (Iowa 2014).                  We

“consider all of the record evidence viewed in the light most favorable to the

State, including all reasonable inferences that may be fairly drawn from the

evidence.”     State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012) (internal

quotation marks omitted).        “We will uphold a verdict if it is supported by

substantial evidence.” State v. Jacobs, 607 N.W.2d 679, 682 (Iowa 2000).

III.   Discussion

       Warren’s claim on appeal relates to the sufficiency of the evidence to

support his convictions.1 Specifically, Warren contends there was insufficient


1
  Insofar as trial counsel failed to preserve error on this claim, Warren claims counsel
was ineffective. If a motion for judgment of acquittal lacks specific grounds, those
grounds are not preserved. 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.”); see also State v. Brubaker, 805 N.W.2d 164,
170 (Iowa 2011) (“Failure of trial counsel to preserve error at trial can support an
ineffective-assistance-of-counsel claim.”). At the close of the State’s case, trial counsel
moved for judgment of acquittal, stating:
                If the Court is to view the facts in the light most favorable to the
        prosecution, it would be as follows: That the two supposed eyewitnesses
        gave different stories, both vague stories, which were actually different
        than what they actually told the officers with regards to hair, no hair;
        nobody said anything about a mustache; one gal said they saw the front,
        the other one said they only saw the behind, then later I saw the side.
        The officer kind of dirtied the pool a little bit when he said to them that,
        We’re going to take you to see the guy that did it. And, by the way,
        before he left, tells them that, Oh, we found the purses on or near him.
        So that ID is worthless, frankly, the one that supposedly took place a few
        minutes away from the home.
                With regard to the officers, Mahieu never saw the person he
        apprehended—which ultimately became Mr. Warren—carrying the
        purses, nor did he find any items on Mr. Warren, the cell phones,
        anything. The last witness, I guess—I guess all he has is that he wasn’t
        quite sure what Mr. Warren was doing in the area. More than one way to
        skin that cat.
                                            5


evidence of a “reliable identification” of him as the perpetrator of the crimes.2

Warren does not, however, challenge the admission of the eyewitness

identifications or allege trial counsel was ineffective in failing to file a motion to

suppress the evidence or otherwise object to the admission of the evidence. 3 In

determining the sufficiency of the evidence, all evidence admitted during the trial,

even erroneously admitted evidence, must be considered. State v. Dullard, 668

N.W.2d 585, 597 (Iowa 2003).

       The jury was instructed the State would have to prove the following

elements of burglary in the second degree:

              1. On or about the 2nd day of June, 2013, the defendant
       entered an occupied structure.
              2. The defendant did not have permission or authority to
       enter the occupied structure.
              3. The defendant did so with the specific intent to commit a
       theft.
              4. Persons were present in or upon the occupied structure.

The jury was instructed the State would have to prove the following elements of

theft in the third degree:


                For that reason, I would ask that the Court grant the motion.
We conclude Warren’s sufficiency-of-the-evidence claim was raised in his motion for
judgment of acquittal, and therefore, error has been preserved.
2
  Warren challenges the “police-arranged identification procedure” as unnecessarily and
impermissibly suggestive, claiming:
        1) Sorenson and Rewerts saw an intruder for 10-15 seconds outside an
        apartment; 2) Sorenson saw him from the back and profile; 3) 40-50
        minutes later police transported them to a nearby location, informing them
        that a person and missing purses had been discovered; 4) the purse of
        Ashley Gregan was identified BEFORE a suspect was identified at the
        same location; and 5) both Sorenson and Rewerts together,
        contemporaneously, identified Warren who was in police custody and in
        handcuffs on a public street.
3
  In this vein, Warren’s reliance on State v. Ash, 244 N.W.2d 812, 813 (Iowa 1976)
(reviewing district court’s failure to exclude identification testimony) is misplaced. In
contrast to Ash, the issue before us is not the admissibility of the challenged eyewitness
testimony, but rather, whether the evidence before the jury was sufficient to support
Warren’s convictions.
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             1. On or about the 2nd day of June, 2013, the defendant
      took possession or control of property.
             2. The defendant did so with the intent to deprive the owner
      of the property.
             3. The property at the time of the taking had a value [of]
      more than $500 but no more than $1000.

      Viewing the evidence in the light most favorable to the State, we conclude

substantial evidence supports the jury’s findings of guilt.       The jury heard

testimony from three investigating officers, as well as testimony from two women

who saw Warren rummaging through purses at the apartment and identified

Warren as the intruder less than one hour later. In particular, Sorenson was able

to observe the intruder for approximately fifteen to twenty seconds before he ran

away, and an additional couple of seconds while she attempted to pursue him.

Sorenson stated there was no doubt in her mind Warren was the person she saw

in her apartment earlier that evening.

      Moreover, with regard to eyewitness identification, the jury was instructed:

             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 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
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       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.

       “[J]uries are presumed to follow the court’s instructions.” State v. Becker,

818 N.W.2d 135, 162 (Iowa 2012). And “it is for the jury to judge the credibility of

the witnesses and weigh the evidence.” See State v. Laffey, 600 N.W.2d 57, 59-

60 (Iowa 1999). “[U]nless the record lacks substantial evidence, we are bound

by the jury’s verdict.” Id. Considering the record before the jury, we conclude the

jury could have reasonably believed the testimony of the officers, Sorenson, and

Rewerts in reaching the conclusion that Warren was the perpetrator of the crimes

at issue in this case.

       We affirm the judgment and sentence entered following Warren’s

convictions for burglary in the second degree and theft in the third degree.

       AFFIRMED.
