                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1343
                            Filed December 5, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

STEVE ARMSTED,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Clinton County, Mark R. Lawson,

Judge.



      Defendant appeals his conviction for willful injury causing serious injury.

AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., Bower, J., and Carr, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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BOWER, Judge.

      Steve Armsted appeals his conviction for willful injury causing serious injury.

We find the present record is not adequate for us to address Armsted’s claim of

ineffective assistance of counsel regarding defense counsel’s failure to present

expert testimony on the issue of eyewitness identification or request a jury

instruction on eyewitness identification, and we determine these issues should be

preserved for postconviction proceedings. We affirm Armsted’s conviction.

      I.     Background Facts & Proceedings

      On March 2, 2015, at about 2:00 a.m., Joshua Robbins and his cousin went

to a convenience store, known locally as the 24/7, in Clinton. Robbins got into a

verbal disagreement with a man in the parking lot. When Robbins and his cousin

left in their vehicle, they were followed by a gray Cadillac driven by the man.

Robbins parked near his home, and the Cadillac parked behind him. Robbins went

to confront the man, and they got into a physical altercation. Robbins stated he

might have kicked the passenger-side door of the Cadillac. Robbins stated he was

struck in the face with a meat cleaver. The man returned to his vehicle and left.

Robbins had a severe laceration on his face and was transported to Iowa City for

treatment.

      A vehicle matching the description of the gray Cadillac was located and

determined to be registered to Armsted. There was a boot print on the passenger-

side door of Armsted’s vehicle. In addition, damage to Armsted’s vehicle matched

damage on the Cadillac seen in a video from the convenience store. Armsted told

officers he had been drinking beer that evening at the River City Brewing

Company, which was across the street from the convenience store.
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       Armsted was charged with willful injury causing serious injury, in violation

of Iowa Code section 708.4(1) (2015), a class “C” felony. During the jury trial,

Rachael Wenzl, the cashier at the convenience store at the time of the incident,

testified Armsted was a regular customer. She identified him as a person involved

in the argument in the parking lot and pointed him out in the courtroom. Robbins

testified he observed the video from the convenience store and stated the person

he argued with in the parking lot was the same person who cut him. Officer Ben

Huizenga identified Armsted as the registered owner of the Cadillac.

       Armsted’s former girlfriend, Alfredia Canady, testified Armsted told her

“there were two guys that he had an altercation with at the store. One of the guys

called him a n***** and he—the guy and him got into it and he kicked his car door

and he—he cut him.” Canady stated Armsted told her the person he cut went to

the hospital in Iowa City. She stated this happened at the 24/7. Canady testified

Armsted carried a knife “[a]lmost all the time.”

       The jury found Armsted guilty of willful injury causing serious injury using a

dangerous weapon in the commission of the offense. Armsted was sentenced to

a term of imprisonment not to exceed ten years, with a mandatory minimum of five

years to be served concurrently with another sentence he was serving. Armsted

now appeals.

       II.     Ineffective Assistance

       Armsted claims he received ineffective assistance because defense

counsel did not present expert testimony on the issue of eyewitness identification

or request a jury instruction on eyewitness identification. He states the jury should

have been educated on the reliability and limitations of eyewitness identification.
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Armsted states he was prejudiced by defense counsel’s performance. Armsted

claims the State’s case is based primarily on eyewitness identification.

      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. State

v. Polly, 657 N.W.2d 462, 465 (Iowa 2003).

      The State claims Armsted’s assertion of ineffective assistance of counsel

should be preserved for postconviction relief proceedings. A claim of ineffective

assistance of counsel should be considered on direct appeal “only if the record is

adequate to decide the issue.” State v. Hopkins, 860 N.W.2d 550, 556 (Iowa

2015). When a claim involves issues of trial strategy and tactical decisions, the

claim should be preserved for postconviction proceedings in order to fully develop

the record. Id. Additionally, by preserving the claim an “attorney charged with

providing ineffective assistance may have an opportunity to respond to defendant’s

claims.” State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002).

      We conclude the present record is not adequate to address Armsted’s claim

of ineffective assistance of counsel regarding defense counsel’s failure to present

expert testimony on the issue of eyewitness identification or request a jury

instruction on eyewitness identification. Defense counsel should be given the

opportunity to respond to Armsted’s claims.      “[W]e preserve these claims for

postconviction-relief proceedings ‘so an adequate record of the claim can be
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developed and the attorney charged with providing ineffective assistance may

have an opportunity to respond to defendant’s claims.’” See State v. Harrison, 914

N.W.2d 178, 208–09 (Iowa 2018) (citation omitted).

      We affirm Armsted’s conviction for willful injury causing serious injury.

      AFFIRMED.
