                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1534
                               Filed April 17, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ABRAHAM PETRO RIKO,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.



      Abraham Riko appeals from judgment and sentence following his

convictions for second-degree theft (two counts), assault on a peace officer, and

first-degree eluding. AFFIRMED.



      Karmen Anderson of Anderson & Taylor, P.L.L.C, Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee.



      Considered by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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DANILSON, Senior Judge.

       Abraham Riko appeals from judgment and sentence following his

convictions for second-degree theft (two counts), in violation of Iowa Code section

714.1(4) and 714.2(2) (2016); assault on a peace officer, in violation of sections

708.1(2)(a) and 708.3A(4); and first-degree eluding, in violation of section

321.279(3). He alleges there is insufficient evidence to support the charges and

trial counsel was ineffective in failing to object to a jury instruction on the elements

of eluding that included the phrase “and/or.” We affirm.

       On appeal, Riko asserts there is insufficient evidence (1) that he was “the

driver of the Toyota Camry,” (2) that he “knew the vehicle(s) were stolen,” and

(3) that he “was participating in a felony” as required for first-degree eluding. Only

the first of these claims was adequately preserved for our review. 1 See State v.

Williams, 695N.W.2d 23, 27 (Iowa 2005) (“[W]hen the motion for judgment of

acquittal did not make reference to the specific elements of the crime on which the

evidence was claimed to be insufficient, it did not preserve the sufficiency of the

evidence issue for review.”).

       Sufficiency of the evidence of identity. We review the sufficiency of the

evidence for correction of errors at law. State v. Kelso-Christy, 911 N.W.2d 663,



1
   “A motion for judgment of acquittal is a means for challenging the sufficiency of the
evidence to sustain a conviction.” State v. Allen, 304 N.W.2d 203, 206 (Iowa 1981). To
preserve an issue for appellate review, a motion for judgment of acquittal must make direct
reference to claimed evidentiary insufficiency. See State v. Schories, 827 N.W.2d 659,
664 (Iowa 2013). “It is a fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court before we will decide them on
appeal.” Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012) (citation omitted). “If the
court’s ruling indicates that the court considered the issue and necessarily ruled on it, even
if the court’s reasoning is ‘incomplete or sparse’, the issue has been preserved.” Id. at
864.
                                               3


666 (Iowa 2018). “[W]e examine whether, taken in the light most favorable to the

State, the finding of guilt is supported by substantial evidence in the record.” State

v. Meyers, 799 N.W.2d 132, 138 (Iowa 2011). “Substantial evidence exists when

the evidence ‘would convince a rational fact finder the defendant is guilty beyond

a reasonable doubt.’” Kelso-Christy, 911 N.W.2d at 666 (citation omitted).

          Viewing the evidence in the light most favorable to the State, the record

shows that on December 22, 2016, Des Moines Police Officer Linda Powers

observed two men in a stolen Hyundai Sante Fe in a parking lot at the 700 block

of East Fifth Street, Des Moines. She ordered both men out of the vehicle. The

passenger, who was wearing a dark jacket and dark jeans, got out of the front

passenger side of the vehicle and walked away, was not pursued by Powers, and

was not seen again. The person in the driver’s side of the Sante Fe exited the car

holding a computer, which he threw at the officer, and then ran northbound across

the pedestrian bridge over the freeway. This person was wearing dark jeans, a

distinctive white belt, red shoes, and a red jacket. 2 Officers gave chase but were

unable to apprehend the person.

          Minutes later, a retired police officer who was in an unmarked car spotted a

Toyota Camry that had been reported stolen. The officer called dispatch and

followed the Camry until uniformed officers in marked vehicles could respond. Des

Moines Police Officer Eric Morris responded and attempted to stop the Camry near

Hickman Road and Sixth Avenue. Instead, the driver of the Camry sped away, at

times going more than twenty-five miles an hour over the speed limit; drove



2
    Riko did not contest that he was the driver of the Sante Fe.
                                           4


through stop signs; and drove on the wrong side of the street. When the Camry

went into an alleyway just north of the freeway and Sixth Avenue, Officer Morris

and another responding officer, Jerald Fisher, attempted to set up a PIT

maneuver.3 Officer Morris struck the back of the Camry, which spun 180 degrees,

and was now generally facing both officers’ vehicles. Instead of stopping, the

Camry crashed through both vehicles and drove away. The chase continued.

       The driver of the Camry lost control, and the vehicle left the road near the

intersection of Cleveland and Idaho Streets. The driver of the Camry abandoned

the vehicle and fled on foot in a northeasterly direction. Officer Kelly Drane was

one of the officers chasing the Camry. The audio from her patrol car includes a

description of the person running from the Camry as a black male wearing a dark

jacket and dark jeans. About one-half block from where the Camry crashed, Riko

was found hiding in a garbage can by Officer Alycia Peterson. Officers Fisher and

Morris arrived at the scene and identified the man as the driver of the Camry.

Riko’s fingerprint was found on the computer thrown at Officer Powers. A photo

taken of Riko upon his arrest shows he was wearing dark jeans, a distinctive white

belt, and red and white shoes.

       Riko challenges Officers Fisher’s and Morris’s identification of him, noting

they saw his face for just seconds. Nonetheless, Officers Morris and Fisher

positively identified Riko as the driver of the Camry. Riko was found one-half mile




3
  A PIT maneuver was described by Officer Morris. He stated, “A PIT maneuver is when
a patrol vehicle is used to stop a fleeing vehicle. The—one on the right—one of the front
bumpers is put in contact with one of the rear quarter panels of the suspect vehicle, and
then the vehicle is basically spun around to stop forward motion of the vehicle.” A
secondary law enforcement vehicle is used to “box the suspect vehicle in.”
                                              5


from the crashed Camry, hiding in a garbage can. His flight and hiding are factors

from which the jury could infer he was the driver. See State v. Wilson, 878 N.W.2d

203, 211 (Iowa 2016) (“It is well-settled law that the act of avoiding law enforcement

after a crime has been committed may constitute circumstantial evidence of

consciousness of guilt that is probative of guilt itself.”). We conclude there is

substantial evidence from which a reasonable jury could find Riko was the driver

of the Camry.

       Ineffective-assistance-of-counsel claims. In his reply brief, Riko notes the

second insufficiency claim was raised in the motion for new trial, and

acknowledges the third claim was not made at trial. He asks that if they were not

properly preserved, we address the claims under the rubric of ineffective

assistance of counsel.4          Thus, we are presented with three claims of

ineffectiveness. Riko asserts counsel was ineffective in (1) failing to challenge the

sufficiency of the evidence that “[he] knew the vehicle(s) were stolen,” (2) failing to

challenge the sufficiency of the evidence that he “was participating in a felony” as

required for first-degree eluding, and (3) failing to object to the jury instruction on

eluding, which included as the fourth element: “At the time of this offense, the

defendant was also engaged in the offense of theft in the second degree and/or

assault on a peace officer.”


4
  The State has moved to strike these arguments because Riko did not ask that they be
addressed as ineffectiveness claims until his reply brief. Generally, a claim not raised until
a reply brief is not preserved for our review. See State v. Olsen, 794 N.W.2d 285, 287 n.1
(Iowa 2011) (“Because Olsen failed to raise this issue in his original brief, the issue is not
preserved for our review.”). However, given our de novo standard of review and the fact
that the State has addressed the merits of the claims, we deny the motion to strike, pass
on the question of error preservation, and address the merits of the arguments. See State
v. McNeal, 867 N.W.2d 91, 99 (Iowa 2015) (choosing to pass on the preservation issue
because the claim was without merit).
                                           6

       We review claims of ineffective assistance of counsel de novo. See State

v. Bearse, 748 N.W.2d 211, 214 (Iowa 2008).                 Generally, we preserve

ineffectiveness claims for possible postconviction relief. State v. Soboroff, 798

N.W.2d 1, 8 (Iowa 2011). However, we have reviewed the record in the case

before us and we conclude that the record is sufficient to address the

ineffectiveness claims.

       To establish the claim of ineffectiveness of trial counsel, Riko must prove

his attorney’s performance fell below “an objective standard of reasonableness,”

and “the deficient performance prejudiced the defense.”            See Strickland v.

Washington, 466 U.S. 668, 687-88 (1984); State v. Brubaker, 805 N.W.2d 164,

171 (Iowa 2011). The applicant must overcome a strong presumption of counsel’s

competence. Brubaker, 805 N.W.2d at 171.

       Riko’s trial attorney performed competently if it would have been meritless

to argue specifically in his motion for judgment of acquittal that there was

insufficient evidence to prove Riko knew the vehicles were stolen and that he was

participating in a felony as required for first-degree eluding. See id. (noting “[w]e

will not find counsel incompetent for failing to pursue a meritless issue”).

       Like intent, a defendant’s knowledge is not often capable of direct evidence.

Cf. State v. Casady, 491 N.W.2d 782, 787 (Iowa 1992) (“Intent is a state of mind

difficult of proof by direct evidence.”). But, a person’s knowledge may be inferred

from the circumstances. See id.; see also State v. Huser, 894 N.W.2d 472, 491

(Iowa 2017) (“We have stated that a fact finder may infer a defendant’s

participation from all of the surrounding circumstances of the illegal activity.”).
                                         7


       Here, from his flight from both cars and other actions, there was substantial

evidence from which the jury could infer Riko knew both vehicles were stolen. See

Wilson, 878 N.W.2d at 212 n.3 (“Our analysis concerning ‘flight evidence’ applies

not only to evidence showing flight from law enforcement, but also to evidence

showing a defendant attempted to avoid law enforcement by other means.”).

Before fleeing from the Sante Fe, Riko threw a laptop at Officer Powers. He did

not stop when officers attempted a traffic stop of the Camry, rather, he led police

on high-speed chase, rammed the Camry into the police officers’ vehicles to evade

being stopped, and when he crashed the vehicle, he ran and hid in a garbage can.

See id. at 212-13 (“For evidence the defendant sought to avoid apprehension to

be probative of his or her actual guilt with respect to the crime charged, the

evidence must support a chain of inferences (1) from the defendant’s behavior to

avoidance of apprehension, (2) from avoidance of apprehension to consciousness

of guilt, (3) from consciousness of guilt to consciousness of guilt concerning the

crime charged, and (4) from consciousness of guilt concerning the crime charged

to actual guilt of the crime charged.”). A motion for judgment of acquittal would

have failed.

       Nor do we find any merit to Riko’s contention that there is insufficient

evidence that he was engaged in a felony at the time he was eluding law

enforcement. The State charged Riko with second-degree theft by “exercis[ing]

control over stolen property.” Consequently, to convict Riko of felony eluding the

State had to prove Riko was “participating” in second-degree theft while eluding.

In Iowa Code section 702.13, our legislature has defined “participating in a public

offense” as the “period commencing with the first act done directly toward the
                                             8


commission of the offense and for the purpose of committing that offense and

terminating when the person has been arrested or has withdrawn from the scene

of the intended crime and has eluded pursuers, if there be any.” Because Riko

was participating in theft by exercising control over the stolen Camry while he led

law enforcement on a high-speed chase, there was substantial evidence of the

charge. See State v. Barnes, No. 16-0629, 2017 WL 3283282, at *6-8 (Iowa Ct.

App. Aug. 2, 2017), further review denied Dec. 8, 2017. Counsel did not breach a

duty by failing to move for judgment of acquittal on this basis.

         Finally, Riko contends counsel was ineffective in not objecting to the jury

instruction on eluding. Specifically he asserts counsel should have objected to

element four: “At the time of this offense, the defendant was also engaged in the

offense of theft in the second degree and/or assault on a peace officer with a

dangerous weapon.” He cites to Holmes v. Gross, 93 N.W.2d 714, 722 (1958),5

where the court noted the use of the expression and/or “was not advisable . . . in

instructions” because it is “often so unsatisfactory and misleading.” We have found

substantial evidence Riko was participating in the offense of theft in the second

degree at the time he was eluding officers. Riko himself does not assert a different

outcome would have occurred had the instruction been different. Thus, he has

failed to prove prejudice resulted, and his ineffectiveness claim fails.

         Because substantial evidence supports his convictions and Riko’s

ineffectiveness claims fail, we affirm.

         AFFIRMED.



5
    Riko misstates the case name as State v. Gross but provides an accurate case citation.
