                    IN THE COURT OF APPEALS OF IOWA

                                     No. 13-1093
                                 Filed July 30, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PAUL ANTHONY LAMBERT,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Lee (North) County, Michael J.

Schilling, Judge.



       Paul Lambert appeals from his judgment and sentence for first-degree

burglary. AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, Michael P. Short, County Attorney, and Artemio M. Santiago, Assistant

County Attorney, for appellee.



       Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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VAITHESWARAN, P.J.

          Paul Lambert appeals his judgment and sentence for first-degree burglary.

Lambert contends (i) there is insufficient evidence to support the jury’s finding of

guilt and (ii) his trial attorney was ineffective in failing to present expert testimony

regarding his intoxication defense.

I.        Sufficiency of the Evidence

          The jury was instructed the State would have to prove the following

elements of first-degree burglary:

                  1. On or about September 1, 2012, the defendant broke into
          a residence at 821 Avenue D, Fort Madison, Iowa.
                  2. The residence was an occupied structure.
                  3. One or more persons were present in the occupied
          structure.
                  4. The defendant did not have permission or authority to
          break into the residence.
                  5. The defendant did so with the specific intent to commit a
          theft or assault.
                  6. During the incident the defendant possessed a dangerous
          weapon.

On appeal, Lambert only challenges the evidence supporting the fifth element.

He contends “[t]here is no indication that the defendant had the intent to commit

an assault during the entry of the house” and “did not have intent to commit a

theft.”

          The jury was instructed that “specific intent” means “not only being aware

of doing an act and doing it voluntarily, but in addition, doing it with a specific

purpose in mind.” The jury was further instructed that it “should consider the

facts and circumstances surrounding the act to determine the defendant’s

specific intent” and could “conclude a person intends the natural results of his

acts.”
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       A reasonable juror could have found the following facts. Lambert broke

into a house, removed his shoes, took a butcher knife from the kitchen, went

upstairs, and opened the door of the bedroom where a husband and wife were

sleeping. The wife awoke to find Lambert “flicking a lighter and coming toward

the bed.” She could see he had a knife. He loudly told the couple to lie down,

continued to flick the lighter, and trained the knife on the husband. The wife

thought, “I was either going to be stabbed; my throat’s going to be cut; I’m going

to die right here.” She ran from the room and headed downstairs only to be

followed by Lambert, who caught her on the landing. Lambert grabbed her from

behind, ripping her nightgown in the process. The wife pleaded, “Please don’t

hurt us. What are you doing here?” At that point, Lambert left. After the couple

called 911, Lambert was apprehended in the vicinity, with lighters. The knife was

discovered in a trash can. These facts amount to substantial evidence in support

of the element requiring specific intent to commit an assault or theft. See State

v. Hennings, 791 N.W.2d 828, 832-33 (Iowa 2010) (setting forth standard of

review); State v. Finnel, 515 N.W.2d 41, 42 (Iowa 1994) (“A fact finder may infer

an intent to commit an assault from the circumstances of the defendant’s entry

into the premises and his acts preceding and following the entry.”).

       We reach this conclusion notwithstanding Lambert’s testimony that he

consumed large amounts of alcohol that caused him to black out.            While a

preliminary breath test supported his assertion of excessive alcohol consumption,

the jury was free to find that his intoxication defense did not negate his intent to

commit an assault. See State v. Laffey, 600 N.W.2d 57, 60 (Iowa 1999) (holding
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it is the province of the jury to weigh evidence and credit certain testimony over

other testimony). The jurors were instructed as much. They were advised:

       The fact that a person is under the influence of intoxicants does not
       excuse nor aggravate his guilt. Even if a person is under the
       influence of an intoxicant, he is responsible for his act if he had
       sufficient mental capacity to form the specific intent necessary to
       the crime charged or had the specific intent before he felt under the
       influence of the intoxicant and then committed the act. Intoxication
       is a defense only when it causes a mental disability which makes
       the person incapable of forming the specific intent.

We conclude the district court did not err in denying Lambert’s motion for

judgment of acquittal.

II.    Ineffective Assistance of Counsel

       Lambert claims his trial attorney was ineffective in failing to present expert

testimony regarding his intoxication defense. To prevail, Lambert must show

(1) counsel breached an essential duty and (2) prejudice resulted. Strickland v.

Washington, 466 U.S. 668, 687 (1984). We find the record adequate to decide

the issue on direct appeal. State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008).

       On our de novo review, we discern no breach of an essential duty

because Lambert’s trial attorney pursued an intoxication defense, requested and

was granted a continuance to allow Lambert to “be examined by a doctor,”

arranged for an evaluation with a psychiatrist, determined the psychiatrist would

not be able to serve as a trial expert, and elicited testimony from Lambert that the

psychiatrist told him, he “wasn’t crazy” and thought he was “a normal person.”

       We conclude counsel was not ineffective in failing to call an expert to

support Lambert’s intoxication defense.

       AFFIRMED.
