                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0873
                               Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BERNARD DAVIS JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.



      A defendant appeals his conviction for burglary in the third degree.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and Bower and McDonald, JJ.
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TABOR, Presiding Judge.

       A jury convicted Bernard Davis Jr. of burglary in the third degree. On

appeal, he claims his trial counsel provided ineffective assistance by failing to

challenge the State’s proof he knowingly aided and abetted others in a residential

break-in.   Because Davis cannot show he suffered prejudice from counsel’s

generic motion for judgment of acquittal, we affirm his conviction.

I.     Background Facts and Proceedings

       On the morning of November 24, 2014, neighbors noticed unusual activity

at Caleb Kriegel’s house on the east side of Des Moines. One neighbor saw a

man “coming out from the side of the garage and looking around” and later saw a

black car backed into the driveway. The activity caught her attention because

she believed the homeowner had left for work. She then saw two men approach

the side door of Kriegel’s house. After conferring with another neighbor, they

noticed the side door and a sliding glass door to Kriegel’s house were open. The

neighbors called the police.

       When Des Moines Police Officer Chris Huffman responded to the call, he

found, parked in Kriegel’s driveway, a black Nissan—unoccupied, but the engine

was running. The officer did not locate anyone inside the house, which had been

ransacked. Several neighbors reported seeing people leave the scene. When

Kriegel returned home, he told Officer Huffman he did not give anyone

permission to enter the home. The police found several of Kriegel’s possessions

in the Nissan, including a video game system, a checkbook, a laptop, and a bag

of coins.
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      The Nissan was registered to Marie Banegas. She told police she allowed

Davis, who was her daughter’s boyfriend, to borrow the car that morning. Des

Moines Detective Timothy Lynch contacted Davis, who said he used the car to

pick up three friends: Johnny Wright, Demetrius Patterson, and Brook Ezell

Turner. According to Davis, Turner and Wright suggested they make money by

“doing some kicks”—which was slang for breaking into houses. Davis drove the

car and pulled into Kriegel’s driveway. Davis told the detective that Patterson

and Wright entered the house and Turner told Davis to stay with the car.

Patterson came out of the house carrying a laptop, which he handed to Davis.

After about fifteen minutes, Davis claimed to have entered the house to look for

his companions, but they were “all gone.” Davis said he then saw the police

coming down the street and he “took off running.”

      The State charged Davis by trial information with burglary in the third

degree, a class “D” felony, in violation of Iowa Code sections 713.1 and

713.6A(1) (2013).    Following a jury trial, Davis was found guilty.   He now

appeals, challenging his trial attorney’s performance.

II.   Standard of Review

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

McNeal, 867 N.W.2d 91, 99 (Iowa 2015). Normally we preserve these claims for

postconviction proceedings, but we can resolve them on direct appeal if the

record is adequate. State v. Scalise, 660 N.W.2d 58, 62 (Iowa 2003). The

record is adequate here to resolve Davis’s claim as it relates to the motion for

judgment of acquittal. See id.
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       To prevail on his ineffective-assistance claim, Davis must show counsel

failed to perform an essential duty and prejudice resulted.     See Strickland v.

Washington, 466 U.S. 668, 687 (1984).       He must prove both elements by a

preponderance of the evidence. Id.

III.   Ineffective Assistance of Counsel

       Davis’s sole argument on appeal is that his defense attorney was remiss

in not citing express grounds in his motion for judgment of acquittal.      More

specifically, Davis claims the State failed to prove he “knowingly aided and

abetted others in a burglary.” He asserts he was merely present at the scene

and did not participate in the burglary.     Davis is correct that a motion for

judgment of acquittal does not preserve error if counsel fails to cite specific

grounds. See Scalise, 660 N.W.2d at 62. But we do not find prejudice resulted.

       To convict Davis of burglary, the State was required to prove:

              1. On or about the 24th day of November, 2014, the
       defendant or someone he aided and abetted broke or entered into
       [Kriegel’s house] in Des Moines, Polk County, Iowa.
              2. [Kriegel’s house] is an occupied structure as defined in
       Instruction No. 20.
              3. The defendant or someone he aided and abetted did not
       have permission or authority to break or enter into [Kriegel’s
       house].
              4. The defendant or someone he aided and abetted did so
       with specific intent to commit a theft.

       The court separately instructed the jury that to show aiding and abetting

“the State must prove the Defendant either had such specific intent or ‘aided and

abetted’ with the knowledge the others who directly committed the crime had

such specific intent.” Because the instructions offered two theories, principal
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liability and aiding and abetting, the State had the burden to offer substantial

evidence to support both. See State v. Tyler, 873 N.W.2d 741, 753 (Iowa 2016).

      The jury could have determined that Turner and Wright discussed “doing

some kicks”—which Davis knew to mean they intended to commit a burglary.

Davis drove the Nissan. Turner told him not to drive away while they were inside

the house. Patterson brought a laptop out of the house and handed it to Davis.

Police recovered several stolen items in the Nissan. Davis told Detective Lynch

he ducked into the house to see where his friends were and then fled after he

saw the police coming. Witnesses testified they did not see Davis in the car,

though Davis he told Detective Lynch he waited there for fifteen minutes. In

closing argument, the prosecutor told the jury: “[T]here’s two[] sets of facts here,

and they lead to the same conclusion . . . . [H]e either directly committed the

crime by going into the house with his comrades and bringing the stuff back out

to the car. Or he was the lookout get-away driver.”

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

substantial evidence from which the jury could determine Davis committed

burglary or aided and abetted its commission. See State v. Reed, 875 N.W.2d

693, 704-05 (2016) (recapitulating substantial-evidence standard).       Given the

strength of the State’s evidence, Davis cannot show a reasonable probability the

outcome would have been different had counsel filed a proper motion for

judgment of acquittal. See Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010).

      AFFIRMED.
