                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1144
                               Filed July 30, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ROBERT S. WILLIAMS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, John D. Telleen,

Judge.



      Defendant appeals his convictions for involuntary manslaughter and

intimidation with a dangerous weapon. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney

General, Michael J. Walton, County Attorney, and Jerald Feuerbach and Amy K.

Devine, Assistant County Attorneys, for appellee.



      Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
                                         2


DANILSON, C.J.

           Robert Williams appeals his convictions for involuntary manslaughter,

pursuant to Iowa Code section 707.5(1) (2011), and intimidation with a

dangerous weapons with intent, pursuant to section 708.6. On appeal, Williams

maintains the district court erred when overruling his objection to a felony-murder

element within the murder-in-the-first-degree instruction, as well as an aiding-

and-abetting instruction.      Additionally, he maintains there was insufficient

evidence to support the guilty verdicts and the verdict was contrary to the weight

of the evidence. Finally, he maintains he received ineffective assistance from

trial counsel. We find any error in the felony-murder instruction was harmless as

Williams was convicted of a lesser offense. Williams’ claim regarding the aiding-

and-abetting instruction is without merit.    We also find substantial evidence

supports both of Williams’ convictions and the district court did not abuse its

discretion in denying his motion for new trial. We preserve Williams’ claim of

ineffective assistance for possible future postconviction-relief proceedings and

affirm.

I. Background Facts and Proceedings.

           On November 14, 2012, Williams was charged with murder in the first

degree, pursuant to Iowa Code section 707.1 and 702, as well as intimidation

with a dangerous weapon, pursuant to section 708.6. The charges arose after

two groups of men clashed in the Col Ballroom in Davenport. Minutes later

outside of the ballroom, shots were fired, which injured three individuals, one

fatally.
                                        3


      The matter was tried before a jury beginning on May 20, 2013. The jury

first heard testimony from Marcia Sharkey that her son, Michael Williams,1 died

as a result of a gunshot wound sustained on the evening of May 7, 2011. She

also testified that she knew Michael was a suspect in the drive-by shooting of

Tresvour Robertson’s mother at the time of Michael’s death.

      The jury next heard testimony from the State’s witness, Cazmiere Graves.

Graves was also charged with the murder of Michael but ultimately agreed to

plead guilty to intimidation with a dangerous weapon and cooperate with law

enforcement.    On the day in question, Graves picked up Williams, Tresvour

Robertson, and Marcus Hampton, and proceeded to go shopping. After buying

new clothes, Graves testified they dropped Williams off and the other three went

to a Davenport hotel to get ready for a concert. After changing clothes, the three

males picked up Williams again and went to a concert at the Col Ballroom in

Davenport.

      At the concert, a fight broke out among a large number of people. Graves

testified he was not involved in the altercation but he saw both Robertson and

Hampton in the fight and saw that Hampton was “on the ground getting kicked

and punched” by Michael and his friends.         While the altercation was still

occurring, Graves ran out and got into the white Jeep Cherokee the group had

arrived in. Trell Everett, Robertson, and Williams also exited the event and got

into the vehicle. According to Graves, he was driving with Williams in the front

passenger seat and Everett and Robertson in the backseat. Graves drove the


1
 The decedent will be referred to as Michael throughout the rest of the opinion to
minimize confusion since the decedent and the defendant have the same last name.
                                             4


Jeep around the block looking for Hampton and pulled into a parking lot where he

had to stop behind other stopped vehicles.            People surrounded the vehicle,

including those who had been involved in the fight inside.         Graves observed

Williams reach under the passenger seat, retrieve a silver handgun, and then

lean across him and fire several shots outside of the driver-side window. He did

not see if anyone was hit by the bullets at the time, and Williams stated he hoped

no one got hit.

         Graves then drove the vehicle to a home on Locust Street and placed the

silver handgun in the grill. A second gun, a “long gun,” was retrieved from under

the backseat of the Jeep and also left at the home. After discarding the guns, the

four males parked the truck and left on foot. Graves testified he later received a

text message from Williams2 he understood to mean “not to say nothing because

they said somebody got hit” and that Graves agreed not to talk.

         Graves was unaware Robertson’s mother had been the victim of a drive-

by shooting a few weeks before the incident even though he and Robertson hung

out every day. He admitted he had previously told officers that Williams fired the

shots through the driver-side window in the backseat and that he had made false

statements to the police during prior interviews because he did not want to tell

them the truth. Although Graves first said he did not see Williams place the

handgun in the Jeep, when read back a prior deposition statement that he had

seen the silver handgun earlier in the day, Graves admitted he had seen the gun

before the shooting incident and that he had lied about it when asked earlier at

trial.

2
    Phone records show the text from Williams stated, “B smart.”
                                        5


      Lakeysha Howard arrived at the parking lot at approximately the same

time as the shooting occurred. She saw Graves drive the white vehicle into the

parking lot and then heard eight to ten shots fired. She saw Michael was hit and

bleeding. Howard testified Benrecka Rogers was also with her at this time and

Rogers expressed she thought Robertson may have been the shooter. Howard

thought there were three people total in the vehicle but could only identify

Graves.

      Benrecka Rogers also testified at trial. She recalled a white vehicle, which

she believed to be a Lincoln, drive up in the parking lot with Graves, wearing a

baseball cap, driving the vehicle.     She stated Robertson was in the front

passenger seat and Hampton and Everett were in the backseat of the vehicle.

She believed Robertson was the shooter and shot seven shots outside the front

driver-side window by reaching from the passenger side seat. Rogers admitted

she originally told police officers the driver was wearing a baseball cap but could

not identify Graves as the driver. She also stated she did not know Williams at

the time of her interview with the police and would not have been able to identify

him by name to police. When asked, “Is the truth that you really don’t remember

what you saw that night,” Rogers answered affirmatively.

      According to Hampton, he had shopped with some of the guys earlier in

the day and then had gone to the concert with them later that night. He was only

in the concert for approximately five minutes before the fight started, and he “got

jumped.” Once he was able to get away, Hampton ran for a side exit door and

exited to an outside patio with a tall fence topped with barbed wire. He traversed

the fence, but there was a second fence he could not get over, so he remained in
                                        6


that location until after the shooting when a police officer assisted him from his

predicament.    Hampton acknowledged he was currently incarcerated for

possession of a firearm in an unrelated event. Hampton, who is Robertson’s

cousin, also contended he was not aware Robertson’s mother had been the

victim of a drive-by shooting before the incident at the concert. Hampton denied

he had been in the Jeep at the time of the shooting.

      Like Graves, Robertson was charged with murder but accepted a similar

plea agreement.     Robertson explained there had been verbal fights and

described how things were “going back and forth” between his group of friends

and the group of Michael and his friends leading up to the incident on May 7,

2011. Robertson admitted he was in the fight that broke out in the Col Ballroom.

He exited the concert area when a security guard pulled a man off of him. As he

exited, he saw Graves and Williams were already in the white Jeep, with Graves

in the driver seat and Williams in the passenger seat. He and Everett sat in the

backseat. He explained Graves drove around the block looking for Hampton and

pulled into a parking lot, where he stopped. Michael walked up to the car window

with other individuals who had been fighting in the concert area.         Michael

“grabbed in” the window, and Robertson saw Williams lean forward across

Graves and then heard gunshots.

      Robertson said Graves drove the car to a third party’s house, at Everett’s

suggestion, and left the “silver and chrome 9 mm” and the second gun that had

not been discharged. Robertson admitted he and Everett disposed of the gun

used in the shooting in the river the next day. Robertson recalled that he was

wearing a blue and white striped polo on the evening in question and Williams
                                           7


was wearing a white hat. Robertson also recalled that Graves was in possession

of the 9 mm gun “the whole day” on May 7, 2011, and he, Graves, and Hampton

had driven to a friend’s house to pick up the second gun before the concert.

Prior to the Col Ballroom incident, Robertson’s mother had been shot at while

driving his rental car. As a result, Robertson was angry and, believing Michael

was responsible, had told people he was going to kill Michael.               However,

Robertson had seen Michael several times since the drive-by.

       Charles Bateman, Michael’s brother, was also a witness to the shooting.

He had been part of the fight inside of the concert and exited with his brother. He

saw the white vehicle pull up and heard three or four shots after it stopped. He

saw Graves driving the vehicle and saw the person in the passenger seat

wearing a white hat reach for something under the seat before hearing the shots.

Bateman admitted he had originally told police the four men in the vehicle were

Graves, Everett, Robertson, and Hampton—not Williams. He also had heard

Robertson make threats that he was going to kill Michael.

       The criminologist from the Iowa Department of Criminal Investigations

(DCI) testified he was able to study the seven cartridge casings the police

retrieved from outside the Col Ballroom and that each was fired from the same

firearm.

       At the conclusion of the trial, the jury returned guilty verdicts for the lesser-

included offense of involuntary manslaughter by committing a public offense and

intimidation with a dangerous weapon with intent to injure or provoke fear.

Williams was sentenced to a term of incarceration not to exceed five years on
                                         8


count I and for a term of incarceration not to exceed ten years for count II. The

sentences were ordered to run concurrently. Williams appeals.

II. Standard of Review.

       We review challenges to jury instructions for corrections of errors at law.

State v. Heemstra, 721 N.W.2d 549, 553 (Iowa 2006). To the extent that error is

based on constitutional grounds, our review is de novo. Id.

       We review challenges to the sufficiency of evidence for errors at law.

State v. Sanford, 814 N.W.2d 611, 615 (Iowa 2012). We review the evidence “in

the light most favorable to the State, including all reasonable inferences that may

be deduced from” it to determine whether the finding of guilt is supported by

substantial evidence and should be upheld.        Id. Evidence is substantial if it

would convince a rational fact-finder of the defendant’s guilt beyond a reasonable

doubt. Id.

       The district court has broad discretion when ruling on motions for a new

trial in which the defendant alleges the verdict is contrary to the weight of the

evidence, and we review its decision for an abuse of that discretion. State v.

Nitcher, 720 N.W.2d 547, 559 (Iowa 2006). The weight-of-the-evidence standard

differs from the sufficiency-of-the-evidence standard in that the district court does

not view the evidence from a standpoint most favorable to the government. State

v. Taylor, 689 N.W.2d 116, 134 (Iowa 2004).          Rather, the court weighs the

evidence and considers the credibility of the witnesses. Id. While it has the

discretion to grant a new trial where a verdict rendered by the jury is contrary to

law or evidence, the court should do so only “carefully or sparingly.” Id. In our

review, we limit ourselves to the question of whether the trial court abused its
                                                9


discretion; we do not consider the underlying question of whether the verdict is

against the weight of the evidence. State v. Reeves, 670 N.W.2d 199, 203 (Iowa

2003).

          Finally, a defendant may raise an ineffective-assistance claim on direct

appeal if he has reasonable grounds to believe the record is adequate for us to

address the claim on direct appeal. State v. Straw, 709 N.W.2d 128, 133 (Iowa

2006). If we determine the record is adequate, we may decide the claim. Id. We

review claims for ineffective assistance of counsel de novo. Id.

III. Discussion.

          A. Felony-Murder Instruction.

          Williams maintains the district court erred by overruling his objection to the

inclusion of a jury instruction for murder in the first degree that contained a

felony-murder provision.3 He argues that, under Heemstra, 721 N.W.2d at 553,


3
    The instruction provided to the jury stated:
          The State must prove all of the following elements of Murder In The First
          Degree under Count 1:
                  1. On or about the 7th of May, 2011, the defendant shot Michael
                  Williams.
                  2. Michael Williams died as a result of being shot.
                  3. The defendant acted with malice aforethought.
                  4. The defendant acted either:
                         a. willfully, deliberately, premeditatedly and with a specific
                         intent to kill Michael Williams, or,
                         b. while participating in the forcible felony, Intimidation with
                         a Dangerous Weapon with Intent as described in
                         Instruction No. 47, or
                         c. while participating in the forcible felony of Intimidation
                         with a Dangerous Weapon as described in Instruction No.
                         49.
          If the State has proved all of the elements, the defendant, Robert
          Williams, is guilty of Murder In The First Degree under Count 1. If the
          State has failed to prove any one of the elements, the defendant, Robert
          Williams, is not guilty of Murder In The First Degree under Count 1 and
          you will then consider the lesser-included offense of Murder in the
          Second Degree under Count 1 explained in Instruction No. 30.
                                           10


intimidation with a dangerous weapon is not a separate and distinct offense from

that of murder in the first degree, and thus it cannot serve as the predicate felony

for felony-murder purposes.

       Williams was not convicted of murder in the first degree. Any error in

submission of a charge to a jury is harmless where the defendant is acquitted of

that charge, unless the defendant can show the error infected the remaining

counts.   State v. Rodriguez, 636 N.W.2d 234, 239 n.1 (Iowa 2001).             Here,

Williams asserts the felony-murder instruction infected the other charges by its

“inferential tendency to suggest that Mr. Williams was the shooter.”

       Without deciding whether intimidation with a dangerous weapon can serve

as the predicate for felony-murder under these facts, we find the submission of

the instruction to the jury was harmless. Upon our review of the record, there

does not appear to be any evidence that was received on the felony-murder

charge that was inadmissible as to the involuntary manslaughter charge, nor

does Williams contend otherwise. See State v. Sharpe, 304 N.W.2d 220, 224

(Iowa 1981).      Furthermore, “over-instructing” is generally not considered

reversible error. Id. at 225 (“[E]rror in instructions to a greater offense or higher

degree of the crime is generally considered to be harmless where accused is

convicted of a lesser offense or lower degree.” (quoting 75 Am. Jur. 2d Trial §

876, at 755 (1974)).     Without more, we cannot say the inclusion of the felony-

murder provision infected the other charges against Williams. The marshalling

instruction for the offense of murder in the first degree simply sets out standard

elements without any implication of Williams’ guilt to any of the elements. Thus,

the district court did not err in overruling Williams’ objection.
                                             11


         B. Aiding-and-Abetting Instruction.

         Williams also maintains the district court erred by overruling his objection

to the aiding-and-abetting instruction.4 He asserts that the State presented some

evidence Williams was the shooter but did not present any evidence he aided or

abetted another in the shooting, and thus the instruction should not have been

given to the jury.

         The State suggests that Williams did not offer any authority to support his

position and we should consider the issue waived.                See Iowa R. App. P.

6.903(2)(g)(3) (“Failure to cite authority in support of an issue may be deemed a

waiver of that issue.”); see also Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa

1996) (“[W]e will not speculate on the arguments [appellant] might have made

and then search for legal authority and comb the record for facts to support such

arguments.”). We agree there is scant argument or authority cited.




4
    The aiding-and-abetting instruction provided to the jury states:
                 All persons involved in the commission of a crime, whether they
         directly commit the crime or knowingly “aid and abet” its commission,
         shall be treated in the same way.
                 “Aid and abet” means to knowingly approve and agree to the
         commission of a crime, either by active participation in it or by knowingly
         advising or encouraging the act in some way before or when it is
         committed. Conduct following the crime may be considered only as it
         may tend to prove the defendant’s earlier participation. Mere nearness
         to, or presence at, the scene of the crime, without more evidence, is not
         “aiding and abetting.” Likewise, mere knowledge of the crime is not
         enough to prove “aiding and abetting.”
                 The guilt of a person who knowingly aids and abets the
         commission of a crime must be determined only on the facts which show
         the part he has in it, and does not depend upon the degree of another
         person’s guilt.
                 If you find the State has proved the defendant directly committed
         the crime, or knowingly “aided and abetted” other persons in the
         commission of the crime, then the defendant is guilty of the crime
         charged.
                                         12


       The gist of Williams’ contention is that the case hinged upon him being the

principal rather than an aider and abettor and there is no evidence he aided and

abetted the shooter other than through accomplice testimony.           Williams only

relies upon State v. Martin, 569 N.W.2d 482, 485 (Iowa 1997), for the principle

that “the validity of a verdict based on facts legally supporting one theory for

conviction of a defendant does not negate the possibility of a wrongful conviction

of a defendant under a theory containing legal error.”

       We will be equally brief. “The trial court has the duty to instruct the jury as

to the law on all material issues supported by the evidence.” Iowa R. Crim.

P. 2.19(5)(f); Iowa R. Civ. P. 1.924. “Jury instructions are designed to explain the

applicable law to the jurors so the law may be applied to the facts proven at trial.”

State v. Bennett, 503 N.W.2d 42, 45 (Iowa Ct. App. 1993). There was much

conflicting testimony. There was some testimony by two individuals, who were

not accomplices, that Robertson may have shot the handgun. There was also

testimony that Williams had hid the handgun under the passenger seat. There

was also evidence Williams arrived with Robertson, was in the same scuffle, was

present at the time of the shooting, and left the scene with Robertson. There

was animosity between the two groups of individuals. A material issue existed

whether Williams was the shooter or aided or abetted Robertson, who had a

motive due to an earlier shooting at Robertson’s vehicle being driven by his

mother. We find no abuse of discretion. See State v. Countryman, 572 N.W.2d

553, 561 (Iowa 1997) (appropriateness of jury instructions is reviewed for abuse

of discretion).
                                            13


       C. Sufficiency of Evidence.

       Williams maintains the State failed to provide sufficient evidence to

support either of his convictions and the court erred in denying his motion for a

judgment of acquittal. He claims the only evidence presented that he was the

shooter, or that he aided and abetted the shooter, was testimony from witnesses

who lacked credibility.5

       When considering whether substantial evidence supports a conviction, we

consider all evidence, not merely the evidence supporting the verdict. State v.

McFarland, 598 N.W.2d 318, 320 (Iowa 1999).                 “Direct and circumstantial

evidence are equally probative, so long as the evidence raises a fair inference of

guilt and does more than create speculation, suspicion, or conjecture.” State v.

Hoeck, 547 N.W.2d 852, 859 (Iowa Ct. App. 1996). It is the task of the jury to

resolve questions of fact and assess the credibility of witnesses. State v. Mills,

458 N.W.2d 395, 397 (Iowa Ct. App. 1990). A fact finder is not required to

accept a defendant’s version of the facts. Id. “Inherent in our standard of review

of jury verdicts in criminal cases is the recognition that the jury was free to reject

certain evidence, and credit other evidence.” Nitcher, 720 N.W.2d at 556.

       When reviewing the evidence in the light most favorable to the State, a

jury could reasonably conclude Williams was the shooter.                At trial, Graves


5
  In this case, to support the conviction of involuntary manslaughter by committing public
offense, the State had the burden to prove Williams, as the principal actor or as the aider
and abettor of another, recklessly committed assault and, in doing so, unintentionally
caused the death of Michael Williams. Similarly, in order to support the conviction of
intimidation with a dangerous weapon with the intent to injure or provoke fear, the State
had the burden to prove Williams, as the principal actor or as the aider and abettor of
another, shot or discharged a dangerous weapon at or into an assembly of people, the
gun was a dangerous weapon, and at least one person actually experienced fear of
serious injury and their fears were reasonable under existing circumstances.
                                        14


testified he was driving the Jeep at the time of the shooting. He further testified

that Williams was in the passenger seat at the time, that Williams grabbed a gun

from under the car seat, and that he shot it out the driver’s side window several

times. Similarly, Robertson also testified that he was in the Jeep at the time of

the shooting.    As Graves did, Robertson testified Graves was driving and

Williams was sitting in the passenger seat at the time of the shooting. Robertson

testified he saw Michael Williams run up to the car window on the driver’s side

and Robertson ducked because he feared Michael had a gun. He then heard

shots and saw Williams leaning over Graves in the driver seat before Michael fell.

Robertson testified Williams was wearing a white hat. Charles Bateman, the

victim’s brother, corroborated Robertson’s testimony insofar as he testified he

saw Graves driving the Jeep and, although he could not identify the person in the

passenger seat, he saw the person, who was wearing a white hat at the time,

reach for something under the seat.          He then heard several gunshots.

Additionally, the State presented evidence of a text message from Williams to

Graves approximately thirty-six hours after the shooting occurred telling him to

“B smart.”    Graves responded some time later with a text message, asking

Williams, “WATU mean” and another one stating, “Yeah, but I ain’t heard shit

else and you know my grandpa a bail bondsman he said they don’t have any

witnesses.”

      “A jury is free to believe or disbelieve any testimony as it chooses and to

give as much weight to the evidence as, in its judgment, such evidence should

receive.” Id. We acknowledge that the testimony of Graves and Robertson was

accomplice testimony and corroboration by other evidence was necessary. See
                                        15


Iowa R. Crim. P. 2.21(3) (“A conviction cannot be had upon the testimony of an

accomplice or a solicited person, unless corroborated by other evidence which

shall tend to connect the defendant with the commission of the offense . . . .”).

However, “[w]e have determined a small amount of corroborative evidence is all

that is required.” State v. Shortridge, 589 N.W.2d 76, 80 (Iowa Ct. App. 1998).

The corroborative evidence need not confirm every material fact testified to by

the accomplice. State v. Jones, 511 N.W.2d 400, 404 (Iowa Ct. App. 1993). The

existence of corroborative evidence is a question of law for the court, but its

sufficiency is a question of fact for the jury. State v. Doss, 355 N.W.2d 874, 880

(Iowa 1984). Furthermore, insofar as Williams attacks the credibility of Graves

and Robertson as accomplices who testified against him in exchange for plea

bargains, the jury was informed of the terms of the agreement and was free to

decide what weight to give both Graves’ and Robertson’s testimony. “When the

testimony is disputed or if undisputed, when different inferences may be drawn

from it, the question is one of fact for the jury.” State v. Martin, 274 N.W.2d 348,

349 (Iowa 1979).

      Based on our review of the evidence in the record, we conclude the district

court properly denied Williams’ motion for judgment of acquittal because

substantial evidence supports both of his convictions.

      D. Weight of the Evidence.

      Williams asserts the trial court abused its discretion in denying his motion

for new trial. In support of his contention, Williams challenges the credibility of

the State’s witnesses and maintains the greater amount of credible evidence

does not support that he was the shooter or that he aided and abetted the
                                          16


shooter.     He emphasizes the inconsistencies in the testimony and other

statements made by Graves and Robertson, the only two witnesses to testify

they knew it was Williams in the passenger seat of the Jeep at the time of the

shooting. He also attempts to raise doubts about Hampton’s testimony that he

was not in the vehicle at the time of the shooting.

       The district court is not to disturb the jury’s verdict “against any mere

doubt of its correctness.” Reeves, 670 N.W.2d at 203. Our review of the record

indicates the district court did not abuse its discretion by determining the greater

weight of the evidence supports the jury verdict. There are some inconsistencies

between the statements Graves and Robertson made to the police and their

testimony at Williams’ trial. However, both admitted they had previously been

less than forthcoming with police early in the investigation, and at no point did

either identify someone other than Williams as the shooter.               Additionally,

although Benrecka Rogers testified it was Robertson in the front passenger seat,

she also testified Hampton was in the vehicle at the time, and credible testimony

shows Hampton did not exit the concert with the other males and was in an

enclosed area connected to the Col Ballroom during the shooting.

       “[W]hen the evidence is nearly balanced, or is such that different minds

would naturally and fairly come to difference conclusions thereon, [the trial court]

has no right to disturb the findings of the jury . . . .” Id. Trial courts are to grant

motions for new trial only “carefully and sparingly” so as not to “lessen the role of

the jury as the principal trier of the facts.” Ellis, 578 N.W.2d at 659. Here, we

find the district court did not abuse its discretion in overruling Williams’ motion for

new trial.
                                           17


         E. Ineffective Assistance of Counsel

         Williams maintains trial counsel was ineffective for failing to request a jury

instruction regarding specific intent in the aiding-and-abetting instruction.        He

asserts that counsel had a duty to request the additional language in the aiding-

and-abetting instruction, as crimes of specific intent were at issue.6 He maintains

the issue of specific intent is so vital to the defense that its omission is a breach

of duty that results in prejudice. See State v. Goff, 342 N.W.2d 830, 838 (Iowa

1983).

         We   generally preserve      ineffective-assistance-of-counsel     claims for

postconviction-relief proceedings. State v. Utter, 803 N.W.2d 647, 651 (Iowa

2011).7 “Only in rare cases will the trial record alone be sufficient to resolve the

claim on direct appeal.” State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006). We

prefer to reserve such claims for development of the record and to allow trial

counsel to defend against the charge. Id. If the record is inadequate to address

the claim on direct appeal, we must preserve the claim for a postconviction-relief

proceeding, regardless of the potential viability of the claim. State v. Johnson,

784 N.W.2d 192, 198 (Iowa 2010).


6
  The additional paragraph Williams contends should have been included in the aiding-
and-abetting instruction states:
        The crime charged requires a specific intent. Therefore, before you can
        find the defendant “aided and abetted” the commission of the crime, the
        State must prove the defendant either has such specific intent or “aided
        and abetted” with the knowledge the others who directly committed the
        crime had such specific intent. If the defendant did not have the specific
        intent, or knowledge the other had such specific intent, [he] [she] is not
        guilty.
7
  See also Iowa Code § 814.7(3), which provides, “If an ineffective assistance of counsel
claim is raised on direct appeal from the criminal proceedings, the court may decide the
record is adequate to decide the claim or may choose to preserve the claim for
determination under chapter 822.”
                                           18


       Here, the record on this appeal is inadequate to address Williams’ claims,

as we do not know if trial counsel’s failure to request the instruction was a trial

strategy. Williams’ defense was that he was not in the Jeep or even present. If

Williams also argued the lack of specific defense, his defenses would have been

inconsistent. Counsel may have made a strategic decision to forego inconsistent

defenses and concluded denying Williams’ involvement was most likely to be

successful. See State v. Wilkens, 346 N.W.2d 16, 19–20 (Iowa 1984) (holding

counsel was not ineffective for choosing to focus on one defense strategy). We

also do not know if trial counsel conferred with Williams about such a strategy.

See id. at 19 (noting counsel conferred with defendant before focusing on one

theory for defense when finding counsel was not ineffective). Where the defense

strategy is to deny any involvement in the incident, “the individual elements of the

crimes become unimportant.” State v. Fountain, 786 N.W.2d 260, 266–67 (Iowa

2010). In essence, although we conclude the district court’s failure to give the

additional paragraph pertaining to specific intent in the aiding and abetting

instruction was in error,8 whether defense counsel was ineffective for failing to

request the additional paragraph pertaining to specific intent crimes cannot be

determined on this record. We preserve for possible future postconviction-relief

proceedings the issue of whether trial counsel was ineffective. See Johnson,

784 N.W.2d at 198 (holding a claim of ineffective assistance of counsel that


8
  Both crimes upon which the defendant was convicted require specific intent. The
marshalling instruction for intimidation with a dangerous weapon with intent required the
State to prove, “The defendant shot or discharged the dangerous weapon with the
specific intent to injure or cause fear or anger in another.” See also Iowa Code § 708.6.
The marshalling instruction for involuntary manslaughter required the State to prove that
“the defendant recklessly committed the crime of assault.” The offense of assault is a
specific intent crime. See Fountain, 786 N.W.2d at 266–67.
                                        19


cannot be addressed on appeal because of an inadequate record must be

preserved for future postconviction-relief proceedings, even if it is raised in a

general or conclusory manner).

      IV. Conclusion.

      We find the inclusion of the felony-murder instruction was harmless as

Williams was not convicted of murder in the first degree.          Williams’ claim

regarding the aiding-and-abetting instruction is without merit.     We also find

substantial evidence supports both of Williams’ convictions and the district court

did not abuse its discretion in denying his motion for new trial. We preserve

Williams’ claim of ineffective assistance for possible future postconviction-relief

proceedings and affirm.

      AFFIRMED.
