                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0989
                              Filed August 31, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ELIZABETH ANN CAIN-WEST,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, Michael G.

Dieterich, District Associate Judge.



      The defendant appeals from her conviction for driving while barred as an

habitual offender. AFFIRMED.



      William R. Monroe, Burlington, for appellant.

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

Attorney General, for appellee.



      Considered by Danilson, C.J., Tabor, J., and Blane, S.J.*

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

       Elizabeth Cain-West appeals from her conviction for driving while barred

as an habitual offender, in violation of Iowa Code section 321.561 (2013). Cain-

West maintains she received ineffective assistance from trial counsel.

Specifically, she maintains counsel was ineffective for failing to object to a jury

instruction that failed to explain that operating a vehicle applies only to vehicles in

motion or with an engine running.        Additionally, she maintains counsel was

ineffective for failing to object to jury instructions that used language other than

that of the uniform jury instructions.

       In order to prevail on her claim, Cain-West must establish both that (1)

“trial counsel failed to perform an essential duty, and (2) this failure resulted in

prejudice.” See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (citing

Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). Both elements must be

proved by a preponderance of the evidence. Id. We may consider the elements

in either order, and failure to establish either element is fatal to the claim. See

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).             We review claims of

ineffective assistance of counsel de novo, but only after we determine that the

record is adequate to decide the claim on direct appeal. See Straw, 709 N.W.2d

at 133. In this case, we find the record adequate.

       Cain-West maintains counsel was ineffective for failing to object to the jury

instruction which defined “operate” as “having actual physical control over a

motor vehicle.” Cain-West argues this was a misstatement of the law because

“operation” requires the vehicle to be in motion or have the engine running, and

the jury was not instructed as such. See State v. Hopkins, 576 N.W.2d 374, 377
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(Iowa 1998). Under the facts of this case, there was no question whether the

vehicle in question was in motion or the engine was running—the only question

for the jury was whether Cain-West was the person operating the vehicle. Here,

the jury heard evidence that Cain-West had been driving her truck when she hit

another vehicle. Not only did the owner of the struck vehicle testify that Cain-

West admitted she was responsible for hitting the vehicle, a recording from an

investigating officer’s body camera that was played for the jury showed Cain-

West stating the following to the officer: “I pulled in and backed out, and I

accidentally hit her car”; “I moved the truck across the street”; “I drove it from

there to there”; “I could have hit that and drove away, but I was honest enough to

come to the door and say ‘I backed into your thing’”; and “I gave her my phone

number and name—nobody even would have known I hit her car. I was honest.”

       Since it was not contested that the defendant’s truck was in motion or the

engine running when it struck the other vehicle, the jury instruction was not an

incorrect statement of the law. Even if the jury should have been instructed

otherwise regarding the meaning of “operated,” Cain-West cannot establish there

is a reasonable probability the result would have been different if counsel had

objected to the instruction as given. Although at trial Cain-West denied she was

driving the vehicle and called two witnesses who testified they saw her exit the

passenger side after the accident, the jury clearly believed Cain-West was the

person driving the truck when it struck the other vehicle.

       Cain-West also maintains counsel was ineffective for failing to object to

the trial court’s departure from the language of the uniform jury instructions.

Specifically, Cain-West maintains counsel had a duty to object to the use of “the
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defendant” rather than her name and the court’s restatement of how the jury

should weigh evidence. Cain-West places form over substance, and such an

objection has no merit. “The court may phrase instructions in its own words as

long as the instructions given fully and fairly advise the jury of the issues it is to

decide and the law which is applicable.” State v. Liggins, 557 N.W.2d 263, 267

(Iowa 1996). “[T]he trial court is not bound to any model or form in wording

instructions.” State v. Tensley, 249 N.W.2d 659, 662 (Iowa 1977). Counsel has

no duty to raise a meritless objection. Milliam v. State, 745 N.W.2d 719, 721–72

(Iowa 2008).     Because we find the various jury instructions were correct

statements of law, Cain-West cannot establish that trial counsel breached a duty

by failing to object to them.

       Both of Cain-West’s claims of ineffective assistance fail, and we affirm her

conviction for driving while barred.

       AFFIRMED.
