                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1733
                              Filed March 18, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHRISTOPHER A. PUCCIO,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Robert J. Richter,

District Associate Judge.



      A defendant appeals his conviction for attempted burglary in the third

degree. AFFIRMED.



      Martha J. Lucey, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

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

General, for appellee.



      Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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TABOR, Judge.

       A jury convicted Christopher Puccio of attempting to burglarize the Dubuque

Pizza Ranch restaurant.        He challenges that conviction by condemning the

performance of his trial counsel. He contends counsel was remiss in not asking

for three additional jury instructions: (1) a lesser-included-offense instruction on

criminal trespass; (2) an instruction on prior inconsistent witness statements; and

(3) an instruction on how to evaluate eyewitness identification testimony.

       We reject the first and second ineffective-assistance claims because those

instructions did not apply to Puccio’s prosecution. As to the third claim, better

development of the record is needed to decide whether counsel was ineffective for

not ensuring the jury had information about the fallibility of eyewitness

identification.     So we preserve that claim for Puccio to raise if he seeks

postconviction relief (PCR).

       I.         Facts and Prior Proceedings

       About forty-five minutes after midnight, Dubuque police responded to an

after-hours alarm triggered at the Pizza Ranch. They found a shattered glass

panel in the door and the fist-sized rock that did the damage atop a dining table

inside. When Officer Kim Hoover watched the restaurant’s security footage, she

saw two people approach the door. Both wore dark clothing. One appeared to

punch through the broken glass, but “[n]obody went inside. Once the door opened,

they ran immediately.”

       On that same August night, Wyatt Carlborg was driving around the

northwest side of Dubuque in his Ford F-150 truck. In the front seat were two

teenaged friends. In the backseat were Puccio and Alex Marvel. Carlborg’s truck
                                         3


was low on gas, so the backseat passengers brainstormed on how to come up

with gas money. Coincidentally, Marvel was listening to the police scanner on his

phone.

       Carlborg parked on a cul de sac about one-tenth of a mile from the Pizza

Ranch. Puccio and Marvel stepped out of the truck to discuss someone they knew

who worked at the restaurant and could give them an access code. Impatient, they

decided not to wait and left on foot without getting the code. Puccio and Marvel

were gone about twenty minutes. Returning to the truck, Puccio and Marvel were

“breathing heavy” and “looked anxious.” They urged Carlborg to “go, go, go.”

Carlborg responded in such a hurry he “popped the curb” when speeding away.

Marvel heard on the scanner that police intended to stop the truck, so all the

passengers “hopped out, and everybody kind of scattered.” Officers eventually

caught up with each of the passengers. One of the teenagers initially lied to police

about where he had been but quickly decided to cooperate with the investigation.

       Dispatch sent patrol officer Austin Weitz to the area where police found the

Ford truck. He spotted Puccio, who was wearing dark clothing, “hiding, crouched

down in a large group of bushes” in a nearby backyard. Officer Weitz arrested

Puccio. Meanwhile, the front-seat passengers told police they had not met Puccio

before that night. Officers took those teenagers back to the scene and directed a

light toward Puccio. Both teenagers identified Puccio as one of the two men who

left the truck to get gas money.

       The State charged Puccio with attempted burglary in the third degree, in

violation of Iowa Code sections 713.2 and 713.6B(1) (2017). At trial, the State

presented traffic camera video captured the night of the incident. The footage
                                            4


showed two people walking toward the Pizza Ranch. Several investigating officers

and both front-seat passengers testified for the State. The jury found Puccio guilty

as charged. He now appeals.

       II.     Scope and Standard of Review

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

Brown, 930 N.W.2d 840, 844 (Iowa 2019). To prove each claim, the accused must

show by a preponderance of the evidence counsel breached an essential duty and

prejudice resulted. Id. at 855 (citing Strickland v. Washington, 466 U.S. 668, 687

(1984)). Counsel breaches an essential duty by making such serious errors that

they are no longer functioning as the advocates the constitution guarantees. State

v. Lorenzo Baltazar, 935 N.W.2d 862, 869 (Iowa 2019). Prejudice under Strickland

means there is a reasonable probability that but for counsel’s error the result of the

trial would have been different. Id. That reasonable probability undermines our

confidence in the outcome. Id.

       Puccio asks us to stray from the Strickland prejudice standard, arguing

failure to request jury instructions bearing on the theory of defense constitutes

“structural error.” A structural error is more than a flaw in the trial process itself; it

affects “the framework within which the trial proceeds.” Krogmann v. State, 914

N.W.2d 293, 313 (Iowa 2018) (citation omitted). Puccio lobbied our supreme court

to retain this case to address the question of structural error. Because the supreme

court transferred the case to us, we proceed under the established standard. See

Lorenzo Baltazar, 935 N.W.2d at 873 (applying Strickland prejudice to ineffective-

assistance claim involving jury instruction).
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        It has been our common practice to preserve challenges to trial counsel’s

performance for PCR proceedings. See State v. Tompkins, 859 N.W.2d 631, 637

(Iowa 2015). But, for now, we may address them on direct appeal if the record is

adequately developed to do so.1 Id.

        III.   Analysis

        Puccio claims trial counsel was ineffective in three ways: (1) not asking the

court to instruct the jurors on the lesser included offense of criminal trespass;

(2) not requesting an instruction on inconsistent witness statements; and (3) not

requesting an eyewitness identification instruction. We will address each claim in

turn.

        A.     Lesser Included Offense

        Where the crime charged includes lesser offenses, the district court must

instruct the jury as to all lesser included offenses “of which the accused might be

found guilty” under the charging instrument and the evidence presented, even if

the parties do not request those instructions. Iowa R. Crim. P. 2.6(3). The doctrine

of lesser included offenses is “an important component of procedural fairness and

substantial justice for the accused in a criminal case.” State v. Miller, 841 N.W.2d

583, 587 (Iowa 2014). But “[t]he question of when one offense is a lesser included

offense of another has perplexed courts for centuries.” State v. West, 924 N.W.2d

502, 504 (Iowa 2019). An accused is entitled to a proposed instruction on a lesser

included offense if that offense meets the “impossibility test”—meaning it would be


1 Our supreme court decided recent amendments to Iowa Code section 814.7
(prohibiting resolution of ineffective-assistance-of-counsel claims on direct appeal)
apply only prospectively and do not apply to cases, like this one, pending on July 1,
2019. See State v. Macke, 933 N.W.2d 226, 228 (Iowa 2019).
                                         6


legally impossible to commit the greater offense without simultaneously committing

the lesser offense. See Miller, 841 N.W.2d at 588–89 (reviewing tests in State v.

Jeffries, 430 N.W.2d 728, 730–31 (Iowa 1988), and State v. McNitt, 451 N.W.2d

824, 825 (Iowa 1990)).

       Puccio argues his trial counsel breached an essential duty by not

demanding an instruction on the lesser offense of criminal trespass.2 See Iowa

Code § 716.8. The criminal code defines trespass as “[e]ntering upon . . . property

without the express permission of the owner . . . with the intent to commit a public

offense . . . .” Iowa Code § 716.7(2)(a)(1). Criminal trespass is a lesser included

offense of burglary under the “entering” alternative, but not under the “breaking”

alternative. State v. Steens, 464 N.W.2d 874, 875 (Iowa 1991).

       But here the State charged Puccio with attempted burglary, not a completed

burglary. Compare Iowa Code § 713.2 (defining attempted burglary), with § 713.1

(defining burglary). “Attempted burglary is distinguished from the completed crime

only by defendant’s failure to effect an entry.” State v. Erving, 346 N.W.2d 833,

836 (Iowa 1984). Because it was possible for Puccio to commit attempted burglary

without entering the Pizza Ranch, criminal trespass was not a lesser included

offense of attempted burglary. See State v. Braggs, 784 N.W.2d 31, 36–37 (Iowa

2010) (applying impossibility test). Thus, counsel had no duty to request an




2 Puccio’s trial counsel did ask for an instruction on the lesser charge of criminal
mischief. Counsel told the court she had referenced criminal trespass and found
criminal mischief in the same section of the instructions. She reasoned because
“we don’t have actual entry that’s alleged” criminal mischief seemed to be “the
more appropriate alternative.” The court refused to instruct on criminal mischief
because it was not a lesser included offense of attempted burglary.
                                          7


instruction for the lesser offense. Puccio cannot prevail on this claim of ineffective

assistance of counsel.

       B.     Prior Inconsistent Statements

       Puccio next contends his counsel should have asked for the uniform

instruction on prior inconsistent statements by non-party witnesses. Puccio points

out one of the teenaged passengers “admitted that he lied to police about where

he was coming from and claiming he did not know either of the back seat

occupants when one of them, Alex Marvel, is in fact, his cousin.”

       That instruction provides:

       You have heard evidence claiming [name of witness] made
       statements before this trial while not under oath which were
       inconsistent with what the witness said in this trial.
               Because the witness did not make the earlier statements
       under oath, you may use them only to help you decide if you believe
       the witness.
               Decide if the earlier statements were made and whether they
       were inconsistent with testimony given at trial. You may disregard
       all or any part of the testimony if you find the statements were made
       and they were inconsistent with the testimony given at trial, but you
       are not required to do so.
               Do not disregard the testimony if other evidence you believe
       supports it, or if you believe it for any other reason.

Iowa State Bar Ass’n Iowa Crim. Jury Instruction 200.42.

       An accused is entitled to this “impeachment instruction” if the witness made

statements before trial materially at odds with the witness’s testimony. State v.

Hardin, 569 N.W.2d 517, 521 (Iowa Ct. App. 1997). Here the witness’s testimony

was not inconsistent with his out-of-court statements. Rather, he admitted under

oath that when stopped by the officer: “I lied to him a couple of times . . . saying

where I was coming from.” The teenager testified he was reluctant to tell the truth

because he had “a couple of run-ins with cops before.” But the witness testified
                                           8


he eventually became forthright with the officer. The officer affirmed that account

at trial.    Under these circumstances, counsel had no basis to request the

impeachment instruction. Puccio is unable to show a breach of duty.

        C.     Eyewitness Identification

        In a third claim of ineffective assistance, Puccio argues counsel should have

asked for the uniform instruction on eyewitness identification, which provides:

        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 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.

Iowa State Bar Ass’n Crim. Jury Instruction 200.45.3


3This instruction originates from United States v. Telfaire, 469 F.2d 552 (D.C.
Cir. 1972). In State v. Tobin, our supreme court explained:
       The Telfaire instruction reminds jurors that one of the most important
       issues in this case is the identification of the defendant as the
       perpetrator of the crime and that identity must be proven beyond a
       reasonable doubt. It advises that many factors should be taken into
       account in evaluating identification testimony, including capacity and
       opportunity to observe, circumstances under which the initial and
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        Puccio argues the “one-man lineup” used by the Dubuque police was

“inherently suggestive” to the witnesses. And the jury needed more guidance on

how to assess the reliability of the witnesses’ identification of Puccio as the person

who approached the Pizza Ranch.

        The State responds that Puccio’s counsel had no duty to request the

eyewitness instruction because it “may have hurt him, not helped.” See State v.

Shorter, 893 N.W.2d 65, 86 (Iowa 2017) (holding defendant was entitled to

eyewitness instruction, but could not show he was prejudiced by counsel failing to

ask for it).

        For this challenge to counsel’s performance, we adhere to our preference

to preserve the issue for possible PCR proceedings. See State v. Mulvany, 603

N.W.2d 630, 633 (Iowa Ct. App.1999). The issue of eyewitness identification was

central to the jury’s finding of guilt. We are unable to decipher the defense strategy

from the record on direct appeal. Trial counsel should have an opportunity to

explain her conduct. Id.

        We affirm Puccio’s conviction but preserve his third claim of ineffective

assistance of counsel for potential PCR proceedings.

        AFFIRMED.




      subsequent identifications were made, length of time between the
      event and the identification, subsequent ability or inability to identify,
      and credibility.
338 N.W.2d 879, 880 (Iowa 1983) (quotations omitted).
