                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1535
                               Filed March 6, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAVID LEE FISHER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Appanoose County, Joel D. Yates,

Judge.



      Defendant appeals his conviction for burglary in the third degree.

AFFIRMED.



      Robert Warren Conrad, Knoxville, for appellant.

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

General, for appellee.



      Considered by Potterfield, P.J., Tabor, J., and Scott, S.J.*

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

      David Fisher appeals his conviction for burglary in the third degree. We find

Fisher’s claims of ineffective assistance of counsel should be preserved for

possible postconviction-relief proceedings because the present record is not

adequate to address these issues on direct appeal. We affirm Fisher’s conviction.

      On May 31, 2016, at about 10:00 p.m., James Milani was driving by a

machine shed at Milani Farms, where he was employed, and saw a light was on,

the door was open, and a pickup was parked by the building. Milani stopped his

vehicle, but, before he could get out, three people “moved quickly” from the

machine shed and got into the pickup. The vehicle drove passed him, and Milani

saw the driver; he stated he recognized the person but did not know his name.

Milani called 911. He described the vehicle as a maroon Ford 150 pickup with dual

exhaust pipes. No items were taken from the machine shed, but some tools and

equipment had been piled by the door.

      Within a few days, Deputy Jonathon Printy saw a vehicle matching the

description given by Milani. The vehicle was registered to Fisher. Deputy Harold

Burke sent Milani a picture of the vehicle and a picture of Fisher. Milani also saw

the pickup in the parking lot for Carter-Miller Services, which provided garbage-

removal services for Milani Farms. He identified the vehicle as the one he saw on

May 31.    Milani stated one of the tail pipes was bent, which matched his

recollection of the pickup.     Additionally, Milani identified Fisher from the

photograph. Fisher was employed as a garbage truck driver for Carter-Miller

Services, and Milani Farms was on his route. Milani stated he previously saw

Fisher when he was picking up garbage at Milani Farms.
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       Fisher was charged with burglary in the third degree, in violation of Iowa

Code section 713.6A(1) (2016). At the jury trial, Fisher testified he did not commit

the burglary. He stated he went to bed early that evening because he needed to

get up at 4:00 a.m. the next day. He stated he did not have a bent tailpipe but one

of the tailpipes hung down a little farther than the other. Fisher stated he was

disabled. He presented evidence the burglary could have been committed by a

different person who had a similar pickup. The other pickup, however, had a

different hood, a silver stripe, and custom taillights.

       The jury found Fisher guilty of third-degree burglary. The district court

denied his motion for a new trial. Fisher was sentenced to a term of imprisonment

not to exceed five years, the sentence was suspended, and he was placed on

probation.

       Fisher now appeals, claiming he received ineffective assistance of counsel.

Fisher claims he received ineffective assistance because defense counsel did not

(1) file notice of an alibi defense; (2) object to the photographic identification on the

basis of due process; and (3) file a motion for change of venue.

       We conduct a de novo review of claims of ineffective assistance of counsel.

State v. Maxwell, 743 N.W.2d 185, 195 (Iowa 2008). To establish a claim of

ineffective assistance of counsel, a defendant must prove (1) counsel failed to

perform an essential duty and (2) prejudice resulted to the extent it denied the

defendant a fair trial. Id. A defendant’s failure to prove either element by a

preponderance of the evidence is fatal to a claim of ineffective assistance. See

State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).
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       Generally, we preserve claims of ineffective assistance of counsel for

postconviction-relief proceedings. State v. McNeal, 867 N.W.2d 91, 105 (Iowa

2015). We will address claims of ineffective assistance on direct appeal only when

the record is adequate. Id. at 106. “We prefer to reserve such questions for

postconviction proceedings so the defendant’s trial counsel can defend against the

charge.” Id. at 105 (quoting State v. Tate, 710 N.W.2d 237, 240 (Iowa 2006)).

“This is especially appropriate when the challenged actions concern trial strategy

or tactics counsel could explain if a record were fully developed to address those

issues.” Id. at 105–06. “It is a rare case in which the trial record alone is sufficient

to resolve a claim on direct appeal.” Id. at 106 (citing State v. Straw, 709 N.W.2d

128, 133 (Iowa 2006)).

       We find Fisher’s claims of ineffective assistance of counsel should be

preserved for possible postconviction-relief proceedings. The present record is

not adequate for us to address his claims defense counsel should have filed notice

of an alibi defense, objected to the photographic identification, and filed a motion

for change of venue. In addition, defense counsel should be given an opportunity

to respond to Fisher’s claims.

       We affirm Fisher’s conviction.

       AFFIRMED.
